WORLD TRADE ORGANIZATION  
ORGANIZATION MONDIALE DU COMMERCE  
ORGANIZACIÓN MUNDIAL DEL COMERCIO  
WT/TPR/M/248/Add.1 
31 August 2011 
 (11-4257) 
Trade Policy Review Body 
6 and 8 July 2011 Original: English/Spanish
 anglais/espagnol
 inglés/español 
  
TRADE POLICY REVIEW 
EUROPEAN UNION 
Record of the Meeting 
Addendum 
Chairperson:  H.E. Mr. Mario Matus (Chile) 
  This document contains the a dvance written questions, and rep lies provided by the European 
Union.
1 
__________________________________________________________________________________ 
Organe d'examen des politiques commerciales 
6 et 8 juillet 2011 
 
EXAMEN DES POLITIQUES COMMERCIALES 
UNION EUROPÉENNE 
Compte-rendu de la réunion 
Addendum 
Président:  S.E. M. Mario Matus (Chili) 
 
 Le présent document contient les questions écrites communiquées à l'avance et les réponses 
fournies par l'Union européenne.1 
__________________________________________________________________________________ 
Órgano de Examen de la s Políticas Comerciales 
6 y 8 de julio de 2011  
EXAMEN DE LAS POLÍTICAS COMERCIALES 
UNION EUROPEA  
Acta de la reunión 
Addendum 
Presidente:  Excmo. Sr. Mario Matus (Chile) 
 
 En el presente documento figuran las pre guntas presentadas anticipadamente por escrito, 
junto con las respuestas facilitadas por la Unión europea.1 
                                                      
1 In English and Spanish only./En anglais et espagnol seulement./En inglés y español solamente. WT/TPR/M/248/Add.1 
Page 3 
 
 
  REPLIES PROVIDED BY THE EUROPEAN UNION  
 MEXICO I 
 Capítulo I - El entorno económico 
 
Question 1 
Podría la UE dar más información sobre las medias legislativas que el Parlamento Europeo y el 
Consejo están analizando con miras a intensificar  la coordinación de las políticas fiscales nacionales 
entre los países de la zona del euro y para prev enir los desequilibrios macroeconómicos (página14). 
 Answer 
Over the past few years, the EU has not been able to respect the goals it set itself on economic and fiscal policies, partly because of a surveillance mec hanism that was not stringent enough.  To address 
this, on 29 September 2010 the European Commission presented six legislative proposals.  The 
European Parliament and the Council are expected to give their final agreement to the package in 
June 2011.  A description of the EUs actions can be found at: http://europa.eu/rapid/pressReleasesA ction.do?reference=MEMO/11/364.  
 Capítulo II - Políticas y Prác ticas comerciales por medidas 
 
Question 2 
Que acciones está planeando la UE implementar para armonizar el tiempo necesario para completar 
los procedimientos de importación.  Según el info rme de la Secretaría (página 5), existen algunos 
miembros de la UE en donde el tiem po necesario es cerca del doble de la OECD. 
 
Answer 
While the legislation and procedures, includi ng risk management, are already fully harmonized 
within the EU, the time differences between ports va ry particularly due to geog raphical and logistical 
factors, amongst others;  factors that cannot be harm onized.  Besides, we would like to recall that this 
information has been provided by the OECD and as  such, the EU cannot det ermine the correctness of 
the information, the data and methodology used and how this analysis was made. 
 
Question 3 
La UE tiene contemplado reducir el número de aranceles de puro estorbo (8.8% del total), definidos 
como los menores a 2% (cuadro III.2).  
En el caso de los aranceles no ad valorem , nos gustaría saber si se tie ne contemplado la reducción 
tanto del número (10.5% del total) como de su valor (en promedio su arancel equivalente es 24.7%) 
(cuadro III.2 y página 35).  Asimismo, podría la UE explicar la  razón para mantener aranceles no ad valorem  a vidrio y relojes 
(34 líneas arancelarias).  Answer 
The EU does not at this moment consider reducing or abolishing so-called nuisance tariffs (less than 
2%).  The EU also does not consider reducing th e number or the value of its specific tariffs.  
However, the EU is prepared to negotiate the level of all of its tariffs in multilateral and in some 
cases bilateral negotiations.  None of the EU's  tariffs are applied to im ports of Least-Developed 
Countries (LDCs).  The EU does not feel it has to justify the level or form at of its tariffs, which are all in line with WTO-
rules, including our specific tariffs on watches and other items. WT/TPR/M/248/Add.1 
Page 4  
 
 MEXICO II 
 
II. RÉGIMEN DE POLÍTICA COMERCIAL (1) M
ARCO JURÍDICO E INSTITUCIONAL  
Question 4 
En el párrafo 2 se menciona que la política come rcial exterior, es decir, la política comercial 
relacionada con países no pertenecientes a la Unión, es competencia exclusiva de la UE.  Esto significa que sólo la UE puede adoptar instrumentos  jurídicamente vinculantes en ese ámbito;  los 
Estados miembros sólo pueden hacerlo si están facult ados por la UE, o para aplicar leyes de la UE. 
¿Cuáles serían esos instrumentos jurídicamente vinculantes?    
¿Bajo qué criterios se les podría otorgar facultade s a los EM para negociar estos instrumentos 
jurídicamente vinculantes?  
Answer 
Legally binding instruments are legislation (typ ically regulations) and international agreements. 
The EU Treaties do not set down criteria for the empowerment of Member States.  Therefore, there 
are no legal criteria for empowerment.  Whether the Commission proposes empowerment will depend on the particular set of circumstances.  As an example, Mexico is referred to the Commission proposal of 7 July 2010 fir a Regulation of the European Parliament and of the Council establishing 
transitional arrangements for bilateral investme nt agreements between Member States and third 
countries (COM(2010)344 final). 
 
(5) 
ACUERDOS Y ARREGLOS SOBRE INVERSIONES  
 
Question 5 
En el párrafo 43, se señala que el Tratado de Lisboa  integra la inversión extranjera directa en la 
política comercial exterior de la UE y, de ese modo,  atribuye a la UE comp etencias exclusivas en ese 
ámbito (véase la sección 1) supra).  Como resu ltado de ello, los Esta dos miembros ya no son 
competentes para negociar acuerdos internacionales s obre inversión extranjera directa con terceros 
países, a menos que estén facultados para ello por la UE. ¿Bajo qué criterios se les podría otorgar facultad es a los EM para negociar acuerdos internacionales 
sobre inversión extranjera di recta con terceros países? 
 
Answer 
The proposed Regulation establishing transitional a rrangements for bilateral investment agreements 
between Member States and third co untries (mentioned in para. 45) contains the conditions and the 
procedure under which Member States would be em powered to negotiate new bilateral investment 
agreements or re-negotiate existing ones.  Sin ce the proposed Regulation is still under discussion 
between relevant EU institutions, no further in formation is available at this stage.   
 Question 6 
¿Qué pasará con los CBI firmados por cada EM co n terceros países, serán fusionados en uno, o 
continuaran coexistiendo de manera para lela con las nuevas negociaci ones de la UE en esta materia? 
 Answer 
In accordance with the provisions of the proposed future Regulation establishing transitional 
arrangements for bilateral investment agreements  between Member States and third countries 
(mentioned in para45 and question 5 above), bilateral investment  agreements between Member States 
and third countries can and will be maintained in force,  in order to ensure the necessary level of 
protection for investors.  It is however a long t erm objective of the EU's comprehensive investment 
policy that such agreements are replaced by agreements  concluded at EU level.  The aim is to achieve 
a situation where investors from both EU and from third countries will not need to rely on BITs WT/TPR/M/248/Add.1 
Page 5 
 
 
  concluded by one or the other Member State, but enjoy an effective and comprehensive EU-wide 
investment protection.   Question 7 
¿De acuerdo a las nuevas disposici ones del Tratado de Lisboa, en las negociaciones comerciales en 
curso o futuras con terceros países (Canadá, India, entre otros), cuál será el alcance del capítulo de 
inversión? 
 
Answer 
As indicated in par. 47, the integration of foreign direct investment into the EU's external trade policy 
offers the opportunity for compreh ensive investment negotiations with third countries that would 
include market access and investment protection.  In  the short-term, the EU is interested in 
broadening the scope of existing negotiations wi th several third countries, in order to cover 
investment protection (see for details para. 48).  In the medium-term, the feasibility and desirability of 
pursuing comprehensive, stand-alon e investment agreements with determined third countries that 
present particular opportunities and challeng es for investors will also be explored. 
 Question 8 
En referencia al párrafo 44, ¿podría la CE explicar  el estatus de las discusiones entre el Consejo, PE y 
CE sobre el reglamento en cuestión? ¿Se prevén  muchas modificaciones respecto a la propuesta de 
julio de 2010?  Answer 
The European Commission's proposal for a Re gulation establishing trans itional arrangements for 
bilateral investment agreements should be adopted  by the Council and the European Parliament, 
through the ordinary legislative procedure as set out  in Articles 289 and 294 TFEU.  This procedure 
is currently on-going.  Therefore no further in formation is available at this stage.   
 III. POLÍTICAS Y PRÁCTICAS COMERCIALES, POR MEDIDAS (1) M
EDIDAS QUE AFECTAN DIRECTAMENTE A LAS IMPORTACIONES  
(i) Procedimientos aduaneros  
Question 9 En el párrafo 7, se hace referencia a modificacion es de protección y seguridad " del Código aduanero.  
Desde 2011, los transportistas deben presentar una d eclaración sumaria de entrada electrónica (ENS) 
en la "primera Aduana de llegada" de la UE.  
 
¿Se hicieron análisis de impacto, para evaluar si la ENS además de representar un trámite adicional 
para los exportadores, garantiza el obje tivo de seguridad que la UE desea obtener? 
 
Answer 
The safety and security amendment, which also in troduced the ENS, was not subject to an impact 
assessment.  The amendment is in line with the World Customs Organization's (WCO) SAFE 
Framework of Standards to secure and facilitate glo bal trade as adopted by the WCO Council in its 
June 2005 session.  Question 10 
¿El acuerdo de seguridad, firmado con otros países pa ra evitar la presentación de la ENS, es similar a 
lo establecido por SAFE-OMA? 
 ¿Existen criterios específicos para que un país pue da firmar este tipo de acuerdos (que eviten la 
presentación de la ENS) con la UE? WT/TPR/M/248/Add.1 
Page 6  
 
 Answer 
These security agreements in question are only signed with Norway, Switzerland and Andorra due to 
their specific geographical situation.  Question 11 
Sobre los plazos para la presentación de la ENS, ¿qué sucede si por error u omisión no se cumplen 
con los plazos para su presentación? ¿el embarque puede ser rechazado, o bien, existen alternativas 
para cumplir con dicho requisito? ¿Quién es el responsable de la información su ministrada, el transportista o el exportador? 
¿El transportista es el único que puede hacer la ENS? 
 
Answer 
Deadlines for submission of ENS are laid down under the EU customs legislation. 
EU customs legislation provides only for three excep tions to the rules on deadlines. These are laid 
down in Art. 184b CCIP: 
- where international agreements between the EU and third countries provide for recognition of 
security checks - where international agreements between the EU and third countries require the exchange of 
declaration data by deadlines different from those al ready set in under the EU customs legislation, or 
- cases of force majeure  
Breach of the rules on deadlines is subject to the nat ional sanctions when such sanctions are in force. 
 
As regards the responsible person of the information provided, we would like to clarify that in the 
case of export, it is the exporter.   As regards how can make the ENS, please note that the ENS can be lodged by:  
- the person who brings the goods into the customs territory of the EU; 
- the person who assumes responsibility for th e carriage of the goods into the EU; 
- importer or consignee or other name in whose name or in whose behalf the person bringing the 
goods into the EU or the one responsible for the carriage of goods acts;  or 
- anyone who is able to present the goods in questi on or to have them presented to the competent 
customs authority. 
 
Question 12 
En el párrafo 10 se menciona que la existencia de un operador económico autorizado (OEA), reduce 
los requisitos de datos para la presentación del ENS. ¿Es posible la eliminación de la presentación de  la ENS en caso de contar con un OEA? 
¿Cuál ha sido la experiencia de la UE en relación a los operadores económicos autorizados? 
 
Answer 
The EU customs legislation only allows for a redu ced data set, not the complete elimination of the 
ENS. 
The experiences so far with the EU AEO programme have been quite positive.  Currently we are fine 
tuning some of the tools with which we manage  the AEO programme based on our past experiences. 
(iii) Normas de origen 
 
Question 13 En el párrafo 19 se menciona que en octubre de 2 010, el Parlamento Europeo adoptó la propuesta de 
reglamento de la Comisión sobre el establecimiento de un sistema de marca de origen obligatorio para ciertos productos industriales impor tados de países no comunitarios.  
¿Cuál es la razón de acotarlo a ciertos productos y por qué se exenta de dicha obligación a un número 
limitado de países no comunitarios? WT/TPR/M/248/Add.1 
Page 7 
 
 
  Answer 
According to the proposal for a Regula tion issued by the European Commission on 
16 December 2005, the proposed scheme would apply to  the categories of products listed in Annex, 
which are those for which prior consultations w ith EU stakeholders showed that there was value-
added. 
In its Resolution of October 2010, the European Pa rliament proposed to extend that list to a few 
categories of products but also to limit the cover age of the scheme to so-called "end-consumers" 
products.  The proposed scheme would not apply to a limite d number of non-EU countries (Turkey and the 
contracting parties of the EEA Agreement) owing to  the existing agreements between the EU and the 
relevant Parties.   Question 14 
En el párrafo 25 se menciona que a petición de un país beneficiario del SGP, la Comisión podrá 
permitir una acumulación "ampliada" entre ese país be neficiario y un país que mantenga un acuerdo 
de libre comercio vigente con la UE, con sujeción a ciertas condiciones.  ¿Podría La UE explicar un poco más sobre las condi ciones que deberán cumplirse para permitir dicho 
proceso de acumulación?  
Answer 
Extended cumulation between a beneficiary country and a country with which the European Union 
has a free-trade agreement in accordance with Articl e XXIV of the GATT in force, may be granted by 
the Commission upon request of a beneficiary country, provided that the countries involved in the 
cumulation have undertaken, inter alia, to provid e the necessary administrat ive co-operation both 
with regard to the European Union and also betw een themselves and that the undertaking has been 
notified to the Commission by the beneficiary country concerned.  
Materials falling within Chapters 1 to 24 of the Harmonized System are excluded from extended 
cumulation. More information is available in the guide fo r users on GSP rules of origin available at:  
http://ec.europa.eu/taxation_customs/customs/c ustoms_duties/rules_origin/preferential/article_839_e
n.htm. 
 
Question 15 
En el párrafo 27 se menciona también que en el contexto del examen anterior, la Unión Europea 
señaló que estudiaría la posibilidad de hacer ex tensivas las normas de origen revisadas del SGP a 
otros acuerdos, según el nivel de desarrollo de lo s países participantes y una vez que las normas 
hubieran sido adoptadas y probadas en el marco del SGP.  
¿Existe algún análisis preliminar de dicha posibili dad de extender las normas de origen del SGP a 
otros acuerdos?  
Answer 
The revised rules of origin adopted under GSP ha ve been analyzed and serve as a basis for proposals 
the EU is tabling in its current trade negotiations and which it intends to table for existing agreements 
under the revision clauses.  In this context, EU propo sals are moderated taking into account the level 
of development of the negotiating partner.  
 
(iv) Aranceles 
 
(a) Arancel NMF 
 WT/TPR/M/248/Add.1 
Page 8  
 
 Question 16 
¿Las discusiones actuales sobre la reforma de la Po lítica Agrícola Común de la UE prevista para2013, 
considera de alguna forma la simplificación o modific ación de su actual estructura arancelaria para los 
bienes agrícolas, así como de las otras medidas seña ladas en el párrafo 31, particularmente respecto a 
los precios de entrada o al "cuadro Meursing"?  Answer 
The upcoming CAP reform is not expected to lead to changes of the EU's agricultural tariff structure. 
 
(c) Suspensiones arancelarias  
Question 17 
En el párrafo 41 se menciona que según la Comisión , por regla general, las suspensiones arancelarias 
autónomas se inician por un período de cinco años y, si se utilizan lo suficiente, son prorrogadas de 
forma automática.  La Comisión señala que es posible  suprimir estas medidas de forma anticipada si 
las circunstancias económicas cambian;  las medid as son examinadas con regularidad, y las partes 
interesadas pueden solicitar su eliminación.  Para efectos de previsibilidad, ¿Cuánto es el tiempo de anticipación para dar a conocer la supresión de 
estas medidas?  
Answer 
In response to this question we would like to begin by stating that "interested party" in the context of 
para. 41 would mean Union producers of a prod uct subject to autonom ous tariff suspension. 
There is no formal announcement of the removal of  the tariff suspensions.  However, the known 
parties concerned in the EU (importers, users or th eir associations) are informed well in advance by 
the authorities of the Member States of requests fo r removal. Such requests are filed around 7 to 8 
months prior to their final removal and are discu ssed thoroughly in the Economic Tariff Questions 
Group.  (v) Otras cargas 
Question 18 
Por otra parte, en el párrafo 47 se menciona que  de conformidad con la Directiva 92/83/CEE del 
Consejo, los Estados miembros pueden aplicar tipos reducidos del impuesto especial sobre el 
consumo a la cerveza y el alc ohol etílico producidos por pequeñas fábricas de cerveza y destilerías 
nacionales, conforme a lo establecido en la Directiv a.  Los tipos reducidos pueden ser inferiores a los 
tipos mínimos establecidos en la legislación de la UE , pero no inferiores a la mitad del tipo normal del 
impuesto especial de consumo sobre est os productos.  En virtud de la  Directiva, los Estados miembros 
deben aplicar el tipo reducido a la cerveza y el alc ohol etílico admisibles de otros Estados miembros 
de la UE.  En este sentido, ¿podría la CE explicar las acci ones que está tomando respecto a la adopción de 
medidas por parte del gobierno de la Repúbli ca de Hungría, relacionadas con la producción, 
introducción y régimen fiscal aplicable a la bebida  espirituosa de ese país denominada "Palinka"?  
 Answer 
The services of the European Commi ssion are currently examining the co mpatibility with EU law of 
the measures taken by the Republic of Hungary as  regards certain tax benefits accorded to the 
production of ethyl alcohol (Pálinka) in Hungary. 
 WT/TPR/M/248/Add.1 
Page 9 
 
 
  (vii) Restricciones y controles  
 Question 19  
En el párrafo 67, se menciona que la UE mantiene sistemas de vigilancia de las importaciones de 
determinados productos de acero, i ndependientemente de su origen .  
¿Cuáles son las perspectivas a futuro de estos sistemas? 
 
Answer 
By Regulation (EC) No 76/2002 the Commission in troduced prior Community surveillance of imports 
of certain iron and steel products originating in thir d countries.  This regulation was last extended by 
the Commission Regulation (EU) No 1241/2 009 of 16 December 2009 and shall run until 
31 December 2012.  This steel import licence mechanism  gives an early indication of the steel import 
flows into the EU in the following months.  The licence is free and automatic and does in no way 
constitute a limitation to market acce ss.  This has been confirmed by  the smooth running of the system 
since its start in 2002.  The analysis for the need to continue the system beyond end 2012 has not yet 
been made.  Monthly reports of steel volumes licensed by region of or igin and product group are 
published on the DG Trade website.  This surveillance mechanism is deem ed to be necessary due to continuous volatility of the global steel 
markets and shifts in steel trade flows in particular in  terms of an economic crises.  While it is true 
that the unprecedented slump of the steel market in 2009 has been somewhat compensated by more 
favourable developments in 2010 and 2011, there are still considerable uncertainties in the market on 
top of some significant trade flow shifts and chang es in the raw material supply.  Developments 
related to the major steel producing counties such as China, Russia, Ukraine and Turkey have 
significant potential in this respect.  Therefore, th e EU does not consider it appropriate to end this 
transparency instrument earlier than anticipated. The re are no specific rules for defining the length of 
the limited period.  
 (viii) Reglamentos técnicos y normas 
Question 20 
En el párrafo 74 se menciona que en virtud del Reglamento Nº 764/ 2008, la Comisión deberá publicar 
"una lista no exhaustiva de los productos que no  estén sujetos a la legislación comunitaria de 
armonización".  Según la Comisión, aproximadamente el 25 por ciento del mercado de mercancías de 
la UE no está cubierto por las normas de armonización.  ¿En dónde se puede consultar dicha lista? ¿existen planes para hacer una lista exhaustiva? y por 
último, ¿existen planes para continuar con la  armonización de la legislación comunitaria? 
 
Answer 
As provided for in Recital 35 and Article 12 of Regulation (EC) No 764/2008, the Commission has 
established an indicative, non-exhaustive list of produc ts which are not subject to harmonization at 
EU level.  This list can be  consulted on line at: 
http://ec.europa.eu/enterprise/intsub/a12/  
Please note that there are no plans to produce an exhaustive list. 
 
For an overview of the legislati ve initiatives scheduled for adoption at EU level for 2011 and those 
planned for the period 2012-2014, please refer to the Commission Work Programme 2011 and its Annexes, available at:  http://ec.eur opa.eu/atwork/programmes/index_en.htm. WT/TPR/M/248/Add.1 
Page 10  
 
 (ix) Normas sanitarias y fitosanitarias 
Question 21 
En el párrafo 106 se menciona que la Legislación Al imentaria General permite el establecimiento de 
medidas "provisionales" cuando "se observe la posibilid ad de que haya efectos nocivos para la salud, 
pero siga existiendo incertidumbre científica".  Agrega que las medidas "serán proporcionadas y no 
restringirán el comercio más de lo requerido para alcanzar el nivel elevado de protección de la salud" 
en la UE y se revisarán "en un plazo de tiempo razonable". ¿Podría la CE explicar cuáles podrían ser estas medi das "provisionales", así co mo los parámetros para 
determinar la "proporcionalidad" de la medida  a adoptar en caso de considerarlo necesario? 
Asimismo, ¿en qué se basará la CE para definir el "plazo de tiempo razonable" para revisar la 
medida? 
 
Answer 
Following the example set by the other members of the WTO, the EU  considers that it is entitled to 
prescribe the level of protection, notably as regards  human, animal and plant health, that it considers 
appropriate.  Recourse to the p recautionary principle is a central plank of Union policy.  
 The precautionary principle is relevant only in the even t of a potential risk, even if this risk cannot be 
fully demonstrated or quantified or  its effects determined because of the insufficiency or inclusive 
nature of the scientific data. In this context, th e main factors triggering the recourse to the 
precautionary principle are 3:  identification of pot entially negative effects, scientific evaluation and 
scientific uncertainty. 
On the "reasonable period of time", the Agreem ent on Sanitary and Phytosanitary Measures (SPS) 
provides that measures adopted in the context of  inadequate scientific evidence must respect certain 
conditions.  Indeed, article 5.7 of the SPS agreement includes certain specific rules: 
- The measures must be of a provisional nat ure pending the availability of more reliable 
scientific data. However this provisional nature is  linked to the development of scientific knowledge 
rather than to a time factor; - Research must be carried out to elicit the additional scientific data required for a more 
objective assessment of the risk; - The measures must be periodically reviewed to take account of new scientific data.  The results 
of scientific research should make it possible to co mplete the risk evaluation and if necessary to 
review the measures on the basis of the conclusions .  In summary, the reasonable period envisaged in 
the SPS Agreement includes the time needed for completion of  the necessary scientific work and, 
besides, the time needed for p erformance of a risk evaluation based on the conclusions of this 
scientific work.  It is important to stress that th e provisional nature is not bound up with a time limit 
but with the development of scientific knowledge.  The measures, although provisional, shall be 
maintained as long as the scientific data remain inco mplete, imprecise or inconclusive and as long as 
the risk is considered too high to be imposed on society. 
 
III. POLÍTICAS Y PRÁCTICAS COMERCIALES, POR MEDIDAS 
(3) M
EDIDAS QUE AFECTAN A LA PRODUCCIÓN Y EL COMERCIO  
(iii) Subvenciones y otras ayudas gubernamentales 
 
(b) Ayuda global 
Question 22 
En el párrafo 168 se menciona que la ayuda estat al prestada por los Estados miembros totalizó 
aproximadamente 427.000 millones de euros en 2009, o el 3,6 por ciento del PIB de la UE-27.  En 
promedio, los Estados miembros otorgaron alrede dor de 268.000 millones de euros por año entre 
2007 y 2009, es decir, casi tres veces y media el promedio correspondiente a 2004-2006.  Todo ello WT/TPR/M/248/Add.1 
Page 11 
 
 
  pone de manifiesto el pronunciado aume nto de la ayuda estatal prestada por los Estados miembros en 
respuesta a la crisis financiera y económica.  ¿Existen estimaciones del término de dichas ayudas, o de una posible disminución?  
Answer 
The measures adopted in the context of the crisis were limited in time and the priority now is to 
ensure the exit. In authorizing aid, the Commission was particularly adamant that the measures were 
limited in time and/or contain measures to incentivize an exit from public support as soon as possible. 
The rolling back process has started: on 1 Decemb er 2010 a decision was taken to gradually phase 
out the temporary support while prolonging some of  the measures applicable to the financial and the 
real economy sector until 31 December 2011 but subject to stricter conditions.  However, it is up to 
the Member States to make use or not of this possibility.  
 
(c) Medidas de ayuda en respuesta a la crisis financiera y económica 
Question 23 
En el párrafo 179 se menciona que los Estados miem bros podían adoptar medidas en el contexto del 
marco temporal hasta finales de 2010.  En diciembre de 2010 la Comisión acordó prorrogar 
determinadas medidas del marco temporal hasta fi nales de 2011.  De conformidad con la Comisión, 
"una prórroga limitada de determinadas medidas actualmente establecidas en el marco temporal, 
acompañada de la introducción de condiciones más estr ictas para las medidas prorrogadas, constituye 
un elemento central parael retorno progresivo a las normas de ayuda estatal normales, al tiempo que 
limita el impacto en la competencia.  
¿Qué pasara con dichas medidas prorrogadas hast a 2011?, ¿se eliminarán o serán nuevamente 
aplazadas?  
Answer 
The temporary rules which allowed for exceptional ai d measures to be granted as a response to the 
financial and economic crisis were initially fo reseen until end of 2010.  On 1 December 2010, 
a decision was taken to gradually phase out th e temporary support while prolonging until 
31 December.2011 some of the measures of the Te mporary Framework but subject to stricter 
conditions.  This limited prolonga tion of the Temporary Framework until end 2011 was a first step on 
the European Commission's exit strategy from th e exceptional crisis measures.  The main objective 
now is, when the financial situation normalises, to re turn to the normal rules as soon as possible. 
 In deciding on the phasing out of the 2011 Temporary Framework, the European Commission will assess in due time the evolution of the econom ic situation, the Temporary Framework's 
appropriateness in sustaining the economic recovery,  its effects on competition between firms and 
across Member States as well as the availability  of access to finance based on the companies" 
creditworthiness.  (vi) Propiedad intelectual 
Question 24 
Respecto al párrafo 272, ¿podría la CE explicar en qué etapa se encuentra el proceso de ratificación 
del Acuerdo Comercial de Lucha contra la Falsificación (ACTA) en la UE? 
 
Answer 
The negotiations were concluded at the end of  November 2010 and the EU initialled the text on 
25 November.  The agreement is now in the process of  being adopted by the EU.  It was translated (in 
23 languages) and adopted by the Eu ropean Commission (College of  Commissioners) on 24 June and 
sent to the EU Council for authorizing its signature a nd then to the European Parliament for consent. WT/TPR/M/248/Add.1 
Page 12  
 
 Constitutionally, it is up to the EU Council (repre senting the 27 Member States), to approve the 
signature of international treaties and to appoint a representative to sign them on behalf of the EU 
(normally, a Minister of the country holding the EU Presidency, i.e.  Poland in the 2nd semester of 
2011).  It is possible that a Council decision is taken in October/November. 
ACTA will also need to be signed and ratified by the 27 EU Member States. 
 
IV. EVOLUCIÓN EN DETERMINADOS SECTORES  (1) A
GRICULTURA  
(ii) Políticas agrícolas 
 (a) Ayuda interna 
 Pagos directos  
Question 25 
¿La reforma de la PAC 2013 considerará la elimin ación del monto y número de productos cubiertos 
por los pagos directos?  
Answer 
The previous reforms of the CAP already decoupled a large part of direct aid granted to farmers with 
the introduction of the Single Payment Scheme (S PS) which is decoupled income support removing 
any links between payments and production or prices.   Farmers can decide if and what to produce 
knowing that they will receive the same amount of  aid, thus allowing them to adjust production 
decisions to suit market demand.  The Health Chec k of the CAP, which was implemented in 2009, 
further extended the decoupling of direct support to farmers by including most of the remaining 
coupled payments into the decoupled Single Payment Scheme.  
 
The debate on the CAP post 2013 is currently on-goi ng.  The orientation of the reform was presented 
in the Communication of the European Commission "the CAP towards 2020:  Meeting the food, 
natural resources and territorial challenges of th e future" which was published in November 2010. 
The CAP will remain structured in two comple mentary pillars, with annual direct payments and 
market measures making up the first, and multi-annual  rural development meas ures the second pillar. 
Decoupled direct payments will continue to prov ide basic income support and support for basic 
public goods desired by European society. 
 
(b) Acceso a los mercados 
Question 26 
En el párrafo 32, se menciona que esos cambios aplicados a los derechos para hacer frente a los 
precios de los mercados mundiales  pueden reducir la previsibilidad y exacerbar las fluctuaciones de 
los precios en los mercados mundiales.  ¿La UE ha contemplado alguna opción para minimiza r los posibles efectos negativos en los mercados 
internacionales?  Answer 
The comment in para 32 of the WT O Secretariat's report for the EU TPR relates to a decrease in EU 
tariffs for cereals which took place in response to high world prices.  This is the result of the 
application of Headnote 6 in the EU Schedule and reflects EU cereals bindings.  The EU cannot understand criticism regarding reductio ns in tariffs when such reduc tion in fact creates more market 
access.  WT/TPR/M/248/Add.1 
Page 13 
 
 
  (iii) Niveles de ayuda interna 
Question 27 
En el párrafo 49 se menciona que otros estudios indi can que la PAC, aun después de las reformas de 
los 20 últimos años, sigue teniendo efectos nega tivos tanto dentro como fuera de la UE.  
 
¿Cuáles son esos efectos negati vos, sobre todo fuera de la UE? 
 
Answer 
The EU is not aware of the specific effects that the WTO Secretariat had in mind when drafting this 
statement.  Therefore, we would like to refer Mexico  to footnote 32 in which the Secretariat refers to 
its sources.  We would like to point out that surveys among the European general public consistently 
show wide support for the policy pursued. 
 
Question 28 
¿Las discusiones de las reformas  de 2013 considerarán de alguna forma minimizar los efectos 
negativos que se provocan fuera de la UE? 
 
Answer 
The reforms of the CAP since the early 1990s have increased the comp etitiveness of European 
agriculture and created support schemes which are in large part not or at most minimally trade 
distorting.  The corner stone of the CAP is th e decoupled payments which bear no links to production 
or prices and are notified to the WTO as Green Bo x support.  The elimination of trade distorting 
elements within the CAP resulting fr om the recent reforms is easily noticeable in table IV.6 below 
para 49 quoted in the question above.  One can obse rve the decreasing share of MPS in the PSE over 
time.  We would also refer Mexico to Chart IV .3 where the significant decrease of trade distorting 
Amber Box support is clearly visible.  As far as ex port subsidies are concerned, their use is currently 
minimal, and following recent reforms th ey have been abolished in some sectors. 
 In relation to the post 2013 reform of the CAP, please refer to the Communication of the European Commission "The CAP towards 2020:  Meeting the food, natural resources and territorial challenges 
of the future" which was published in November 2010.   The policy line in this communication gives 
evidence of continuity and even further fine t uning of current support schemes to reinforce the 
environmental, climatological and social benefits of the CAP.  
(2) C
OMERCIO DE SERVICIOS  
(iii) Transporte 
 (c) Transporte marítimo 
Question 29 
En el párrafo 88 se menciona que la Comisión tiene  previsto promover la armonización de las normas 
sustantivas sobre competencia para el sector del tran sporte marítimo.  Tras la supresión de la exención 
por categorías aplicable a las confer encias marítimas, con ef ecto desde el 30 de octubre de 2008, todas 
las prácticas de fijación conjunta de precios para los servicios de entrada y salida de la UE (EEE) son 
actualmente ilegales.  El 1º de enero de 1993, la  UE liberalizó las operaciones de cabotaje para las 
compañías de los demás Estados miembros.   ¿Existe algún proceso de revisión interno para que  dichas prácticas sean legales en el futuro? 
 
Answer 
As regards price-fixing via "conferences" on internat ional container shipping services to and from the 
EU/EEA, the exemption was abolished with effect fr om 18 October 2008.  That decision was the result WT/TPR/M/248/Add.1 
Page 14  
 
 of a four-year review and consultation process. Th ere is no internal revision process under way that 
could lead to reversing that decision.  Neither is there any plan for such a revision process in the foreseeable future.  MEXICO III 
 Preguntas relativas al Informe proporcionado por la Unión Europea  Question 30 
Respecto a las evaluaciones del impacto sobre la sost enibilidad (EIS) que se mencionan en el párrafo 
108 del Informe de la Unión Europea, ¿podría comuni carme si la información generada por las EIS es 
pública?  En caso afirmativo, ¿existe algún medio donde pueda consultarse? 
 
Answer 
In the EU, Trade Sustainability Impact Assessments  (SIAs) are independent studies conducted by 
external consultants.  All reports delivered by th e consultants are published on this website, together 
with the views of the services of the Eu ropean Commission (the "Position Papers").  
 They can be consulted on the following website: http://ec.europa.eu/trade /analysis /sustainability-
impact-assessments/. 
 
Question 31 
También respecto a las EIS, ¿qué carácter tienen sus resultados? ¿Las autori dades están obligadas a 
acatarlos?  
Answer 
Trade SIAs inform negotiators of the po ssible social, environmental and economic  consequences of a 
trade agreement, thus helping to determine how b est to address such conse quences in the negotiation 
itself or through possible flanking or complementary meas ures.  It is important to note that, in the EU, 
Trade SIAs are not binding government instrument s but, rather, independent studies conducted by 
external consultants.  It follows that, on the basis of the information contained in SIAs, and of other 
information at its disposal, the Commission can develop its own views on the potential impacts of 
trade agreements;  the same can be said of the Council of the EU and th e European Parliament, 
which are the institutions in charge of appr oving agreements negotiated by the Commission. 
 
Question 32 
¿Podría dar un ejemplo de las disposiciones y compromisos sobre la creación de mecanismos que amplíen la participación de colectivos inter esados en la aplicación de las normas sociales y 
ambientales referidas en el párrafo 109 del Informe de la Unión Europea? 
 
Answer 
Examples of such provisions include the mechanis ms for consultation and engagement with civil 
society organizations foreseen in Articles 13.12 and 13.13 of the FTA between the EU and South 
Korea; or the provisions in Article 232 of the Ec onomic Partnership Agreement between the EU and 
the CARIFORUM States.  
Question 33 
El régimen de comercio de derechos  de emisión de la Unión Europea (UE) al que se refiere el párrafo 
111 del Informe de la UE, ¿toma en consideración las necesidades de las economías en desarrollo? 
¿De qué manera?  WT/TPR/M/248/Add.1 
Page 15 
 
 
  Answer 
While not being a trade measure, the EU is plea sed to have an opportunity to further explain its 
Emission Trading System (ETS).  The EU ETS now operates in 30 countries (the 27 EU Member States plus Iceland, Liechtenstein and Norway).  Installations currently in  the scheme account for 
almost half of the EU's CO
2 emissions and 40% of its total greenhouse gas emissions.  Airlines will 
join the scheme in 2012.  The EU has thus set a strong example by putting in place domestic 
legislation that will make a significant contributio n to cutting its greenhouse gas emissions to 20% 
below 1990 levels by 2020.  Moreover, the EU is committed to scaling up this reduction to 30%, 
provided that other industrialized nations co mmit to making comparable cuts, and that the more 
advanced developing countries agree to make an adequat e contribution to the global effort.  The EU 
ETS is one of the main tools that the EU is using to meet its ambitious reduction targets.  
 The EU ETS is the main driver of the internatio nal carbon market, accounting for the majority of 
demand for Kyoto mechanisms credits such as tho se from the Clean Development Mechanism (CDM), 
and contribute to supporting developing countries in  their fight against climate change: by buying 
such credits, participants in the EU ETS contribute to providing technology transfer and assistance to 
developing countries and countries with economies in transition.  EU legisl ation provides for ETS 
participants to use credits from mechanisms establis hed under the Kyoto Protocol towards fulfilling 
their obligations under the EU ETS , with quality and quantity limits
2. Between 2008 and 2020, such 
credits can be used up to 50% of the overall reductions below 2005 levels made under the EU ETS3. 
The EU also considers that the CDM should be subs tantially reformed at the UNFCCC level, in order 
to improve its environmental integrity and efficien cy.  To limit climate change to 2°C, the project 
based CDM offsets should be replaced over time by sect oral crediting mechanisms for advanced 
developing countries.  These types of mechanisms go beyond the pure offsetting of emissions and 
could form stepping stones towards globally linked  economy-wide cap-and-trade systems.  The CDM 
would then be focused on least-developed. 
 
Question 34 
¿Podría explicar la manera en que la Unión Eur opea ha abogado por la liberalización de los bienes y 
servicios ambientales en los Acuerdos de Libre Comercio que está negociando?  
 
Answer 
In its bilateral trade negotiations, the EU seek s to achieve a high degree of liberalisation for 
environmental goods and services, notably through ta riff dismantling at entry into force of FTAs or 
shortly thereafter, and through ambitious market  access commitments con cerning environmental 
services. 
 
Preguntas relativas al Informe de la Secretaría  Informe de La Secretaría, Numeral 10 
 
Question 35 
Durante el período objeto de examen, la UE no modi ficó su régimen de contratación pública; la mayor 
parte de la contratación pública (aproximadamente, el 85 por ciento) sigue rigiéndose por la 
legislación nacional de los Estados miembros de la UE. ¿Para cuándo se espera contar con una 
legislación única aplicable a los procedimientos de contratación a nivel nacional o subnacional? ¿Qué 
ocurre con el 15 por ciento restante de la contra tación pública; se rige esta proporción en su totalidad 
                                                      
2 Credits from afforestation, reforesta tion and nuclear projects cannot be used. 
3 The exact amount per operator is to be determined in line with methodology outlined in Directive 
2OO9/29/EC - Article 11a(8). WT/TPR/M/248/Add.1 
Page 16  
 
 por el Acuerdo sobre Contratación Pública de la OM C y otros tratados comerciales suscritos por la 
UE?  
Answer 
The situation in the EU is not the one described by  Mexico. 85% of the procurement in the EU is 
opened to international competition via the GPA an d the FTAs concluded by the EU.  The remaining  
15% relate to procurement which are subject to th e EU procurement directives, but are not committed 
internationally. 
 
Informe de La Secretaría, Numeral 11 
 
Question 36 
El Tratado de Lisboa contiene una disposición específica sobre propi edad intelectual, que constituye 
un paso importante hacia el establecimiento de un ré gimen de propiedad intel ectual para toda la UE. 
Se indica que la Comisión busca alternativas para una protección unitaria de las patentes en la UE 
¿cuáles serían esas alternativas? 
 
Answer 
The European Commission first proposed a regula tion on the Community patent in 2000. In the 
following years, however, an overall agreement could not be reached on the text. Building on the new, 
more specific legal basis introduced by the Lisbon  Treaty for the creation of European intellectual 
property rights, the Commission adopted a proposal for a regulation on the translation arrangements 
for the EU patent.  The 27 Member States, however, could not reach a unanimous agreement on this matter. 
 
As most Member States wished to create unitary pat ent protection in Europe, at their request, the 
Commission presented a proposal to launch enhanced c ooperation in this area.  In March 2011, 25 
Member States were authorized by the Council to establish enhanced cooperation in the area of 
unitary patent protection.  Spain and Italy decided not to participate in the project at this stage.  Two proposals for implementing regulations w ere adopted by the European Commission in April 
2011.  The first proposal sets out the substantive rules on obtaining unitary effect for granted 
European patents, and the second contains the tr anslation arrangements for the granted patents. 
Once adopted by the Council and the European Parliament, inventors can obtain unitary effect to their European patents by submitting a single application for the territories of 25 Member States.  II. RÉGIMEN DE POLÍTICA COMERCIAL 
(5) A
CUERDOS Y ARREGLOS SOBRE INVERSIONES . NUMERALES 43 Y 44. 
Question 37 
El proyecto de política comercial de la UE, presen tado por la Comisión en noviembre de 2010, entre 
otras propuestas, incluye negociar disposiciones globales sobre inversión con los principales 
interlocutores comerciales. Sabemos que el Tratado de Lisboa integra la inversión extranjera directa 
en la política comercial exterior de la UE y, de  ese modo, atribuye a la UE competencias exclusivas 
en ese ámbito. Como resultado de ello, los Estados  miembros ya no serían competentes para negociar 
acuerdos internacionales sobre inversión extranjera directa con terceros países, a menos que estén 
facultados para ello por la UE y en la medida en que no sean incompatibles con la legislación de la 
UE;  dupliquen acuerdos existentes entre la UE  y terceros países o menoscaben la política de 
inversiones de la UE. ¿Cuáles son los criterios especí ficos de la UE para facultar a sus EM y por qué 
"es cuestionable el hecho de que sigan existiendo ac uerdos internacionales de los Estados Miembros 
sobre inversión"?  WT/TPR/M/248/Add.1 
Page 17 
 
 
  Answer 
The proposed Regulation establishing transitional a rrangements for bilateral investment agreements 
between Member States and third countries (mentioned in para. 45) contains provisions to regulate 
the effects under the European law of the ne w division on competence between the EU and its 
Member States with regards to their BITs in relation to the future comprehensive European 
international investment policy.  
 This future Regulation will establish the conditi ons and the procedure under which Member States 
would be empowered to negotiate new bilateral in vestment agreements or re-negotiate existing ones. 
Since the proposed Regulation is still under discu ssion between relevant EU institutions, no further 
information is available at this stage.    
Numeral 46 
 Question 38 
La Comisión considera que la política de inversión in ternacional de la UE debe tener el objetivo de 
asegurar el trato uniforme de los inversores de la UE, ya que la red de CBI vigente da lugar a unas 
"condiciones de desigualdad entre las empresas de la UE que invierten en el extranjero, en función de 
si están o no amdas, como "nacionales", por el CBI  de un determinado Estado  miembro".  ¿Podría la 
Comisión indicar las condiciones de desigualdad en tre las empresas de la UE que invierten en el 
extranjero considerando que hay terceros países que  independientemente de la existencia de un CBI 
consideran a toda empresa como "nacional", tenga o no en su capital social participación extranjera? 
 
Answer 
The "uneven playing field for EU companies in vesting abroad, depending on whether they are 
covered as a "national" under a certain Member Stat e BIT or not" refers to the fact that, under the 
current situation, some EU companies might rel y on the protection conferred by a Bilateral 
Investment Treaty (BIT) in force with the specific th ird country in the territory of which it chooses to 
invest, while others do not.  This situation exists inde pendently of the internal legislation of the third 
country in question, which might or might not treat all foreign companies like its own national companies.  And, in any case, as explained in the European Commission's Communication:  "towards 
a comprehensive EU international investment policy" (available at 
http://trade.ec.europa.eu/doclib/do cs/2011/may/tradoc_147884.pdf), natio nal treatment is only one of 
the standards of investment protection curren tly provided by Member States" BITs. 
 
III. POLÍTICAS Y PRÁCTICAS COMERCIALES, POR MEDIDAS 
Medidas que afectan directamente a las importaciones Párrafo 120 
Question 39 
No queda claro a qué se refiere la aseveración de que los Estados miembros no pueden legislar sobre 
el cultivo genéticamente modificado pero sí sobre su utilización. Se solicita clarificar este punto. 
 
Answer 
Mexico seems to refer here to a sentence in para120 of the WTO Secretariat report. The Commission 
notes that cultivation is precisely one of the possibl e uses of GMOs.  Therefore, the sentence quoted 
may be misleading.  Regarding the proposed Regula tion on cultivation, this regulation provides that 
Member States may adopt measures with respect to th e cultivation of GMOs in their territories, but 
not with respect to the import into the EU of authorized GM seeds and plant propagating material, 
and the products.  The proposal aims at providing the possibility for Member States to ban the cultivation of GMOs (= only the act of cultivati on).  The proposal does not allow Member States to 
prohibit the free circulation and import of GM seed s and the product of the harvest of the cultivation WT/TPR/M/248/Add.1 
Page 18  
 
 of GMOs (in another Member State or in a third coun try) which remains fully harmonized at EU level 
under EU legislation. 
 
Question 40 
Resulta contradictorio que los Estados miembros pueden adoptar medidas con respecto al cultivo de 
OMG en sus territorios, pero no con respecto a la im portación en la UE de semillas y material vegetal 
de reproducción modificados gené ticamente que hayan sido autorizados, ni con respecto a los 
productos de su cultivo ¿Cómo entonces un Estado miembro se protegerse de la importación de 
aquellos OGM que no desea sean introducidos a su te rritorio, si no pueda adoptar medidas respecto a 
la importación? Se solicita clarificar el punto. 
 
Answer 
A Member State will not be allowed to ban the free ci rculation on its territory of GM seeds, even if it 
uses the possibility offered by the proposal to ban GM O cultivation.  Only the act of cultivation may 
be concerned by this measure, not the sale of the products derived from GMOs.  It will be up to the 
Member State concerned to device the necessary measures to ensure that the ban on cultivation is 
made effective, but such measures cannot relat e to the trade and marketing in GMOs itself. 
 
Question 41 
Si estas restricciones o condiciones son diferentes a la  evaluación de riesgo ambiental y sanitario, ¿en 
qué información o motivación están fundamentadas?  
 
Answer 
The Commission considers that Member States could invoke different kind of reasons related to the 
public interest to restrict or ban GMO cultivation in  part or in whole their territory such as public 
moral policy, avoiding GMO presence in products , social policy objectives, town and country 
planning/land use, cultural policy or general environmental policy objectives other than the 
assessment of the adverse effects of GMOs on the e nvironment.  All these reasons are recognized in 
the Treaty on the Functioning of the EU, in derived case-law of the European Court of Justice or in 
secondary EU legislation.  Furthermore, the WT O Agreements do not prohibit WTO Members from 
taking legitimate public policy measures (includi ng in policy areas different to health or the 
environment), provided they are applie d in accordance with WTO obligations. 
 
Párrafo 122 
Question 42 
Podría pensarse que tanto las Directivas de la Unión Europea como las leyes domésticas de sus países 
miembros aplicables a OGM, son válidas; sin embarg o, y toda vez que los Estados miembros pueden 
prohibir la utilización de determinado OGM basados  en criterios diferentes a las evaluaciones 
ambientales y sanitarias, ¿cómo garantiza la Uni ón Europea, la salvaguarda del Estado miembro a 
elegir qué OGM desea introducir, pero sin daña r los derechos de las instituciones o empresas a 
comercializar sus productos? 
 
Answer 
The potential adverse effects that the cultivation of  GMOs may rise for health and the environment 
will continue to be assessed at EU level and authoriza tion to cultivate GMOs in the EU will continue 
to be delivered on this basis at EU level.  It is only after that a GMO has been authorized for 
cultivation at EU level that a Member State will be authorized, on the basis of the proposal, to "opt 
out" and restrict or ban GMO cultivation on its t erritory for other reasons related to the public 
interest.  
Question 43 
Por otra parte, en lo relativo a la sentencia dict ada por el Tribunal de Justicia en relación a la 
legislación adoptada por Polonia para prohibir la comercialización de semillas modificadas WT/TPR/M/248/Add.1 
Page 19 
 
 
  genéticamente, como contraria al derecho de la Un ión Europea, ¿cómo procedió la aplicación de las 
directivas aplicables a todos los Estados miem bros?, suponiendo que prevalece la legislación 
doméstica.  
Answer 
The Commission would like to note that the ruling against Poland to which Mexico refers, has been 
issued by the Court in a legal context which di d not offered the possibility for Member States to 
invoke other reasons than risks to health and envi ronment to restrict or ban GMO cultivation.  The 
aim of the proposal is precisely to allow Member States to invoke other reasons.  The proposal will 
not affect the assessment of risks to health and en vironment which will continue to remain regulated 
at EU level under the procedures and provisions fo reseen by EU law.  As regards the particular 
circumstances of the related case, it is important  to note that Poland has been condemned by the 
Court of Justice of the EU because it did not appear clearly to this Court that the real motivation of the measure was public moral obj ectives when Poland had invoked all along the procedure which 
conduced to this judgement reasons which were relate d to risks to environment or the application of 
the precautionary principle.  
Preguntas en Materia de Obstáculos Técnicos al comercio 
 
Question 44 
¿Qué aspectos de la responsabilidad social son in corporados en las nuevas estrategias de la política 
comercial de la UE, particularmente por lo que se refiere al cumplimiento de los objetivos 
establecidos por la propia UE en mate ria de desarrollo, ambientales y sociales? 
 
Answer 
It should be stressed that the EU"s trade policy must  be conducted within the framework of principles 
and objectives of the Union's external action, includ ing the promotion of the rule of law, human rights 
and sustainable development (Article 205 of the Trea ty on the Functioning of the European Union, 
and Article 21 of the Treaty on the European Un ion).  These considerations apply also to new 
strategies of EU trade policy, including the common investment policy (see the Communication 
"Towards a comprehensive EU internatio nal investment policy" available at:  
http://trade.ec.europa.eu/doclib/ docs/2011/may/tradoc_147884.pdf).  
 
In respect of corporate social responsibility, the acti ons of the EU take due account of the OECD 
Guidelines for Multinational Enterp rises, which are an important in strument to help balance the 
rights and responsibilities of investors.  The EU und ertakes to encourage ad herence by businesses to 
corporate social responsibility practices. Voluntar y actions by economic operators can usefully 
complement governmental action with regard to th e setting and implementation of mandatory rules of 
general application.  This latter perspective – i.e.  governmental action – is addressed in recent FTAs 
in a number of ways, including through provisions  on "trade and sustainable development" intended 
to engage partner countries in a cooperative process based on constructive dialogue and to 
strengthen compliance with domestic and interna tional labour and environmental standards.  
 
Question 45 Los documentos preparados por la secretaría de la OMC en ocasión del examen estipulan que la 
Dirección General de Comercio de la Comisión Eur opea mantiene un diálogo con la sociedad civil 
para que éstas puedan participar en reuniones con la Comisión sobre cuestiones comerciales. Este 
diálogo ¿incluye a los representantes de la s organizaciones de consumidores o grupos de 
consumidores? 
 
Answer 
One of the criteria to participate in the Civil Socie ty Dialogue organized by the Directorate General 
for Trade of the European Commission is to be  a non-for-profit organization.  As consumers WT/TPR/M/248/Add.1 
Page 20  
 
 organizations are typically non-for-profit organizations, they have the right to register for 
participation in Civil Soc iety Dialogue meetings. 
 Question 46 
En múltiples ocasiones, la Unión Europea ha señala do que el fortalecimiento del mercado interno de 
bienes y servicios es una "prioridad esencial" de la  reforma estructural. ¿En qué medida, los aspectos 
de la política del consumidor son c onsiderados en esta reforma estructural para fortalecer el mercado 
interno, sabiendo que el lado de la demanda es el principal motor del mercado interno? 
 
Answer 
On 13 April 2011, the European Commission adopted the Single Market Act to boost growth and 
strengthen confidence in the EU single market . In the Communication the European Commission 
identifies twelve levers for growth and confidence, each featuring one key legislative action and a 
number of supplementary actions.  The European Commission commits itself to deliver the proposals 
for the initiatives included in the Act by the end of 2011 to allow the European Parliament and the EU 
Council to adopt a first series of priority measures  by the end of 2012. In full recognition of their 
importance for the single market, empowering c onsumers constitutes one of the twelve levers 
identified by the Commission.  Thus, before the e nd of 2011, the Commission will present a legislative 
proposal to establish simple, fast and affordable  out-of-court settlement procedures for consumers 
and to protect relations between businesses and their customers.  This action will also include an 
electronic commerce dimension.  The European Commission will moreover propose a revision of the 
General Product Safety Directive to ensure that c onsumers can be even more confident that the goods 
they buy are reliable, irrespective of the place of  production.  To the end, the European Commission 
will present a multiannual plan on market surveillance.   Work on the protection of consumers on 
retail financial services will also continue, with particular regard to transparency of bank fees and 
better protection of borrowers in mortgage markets.  
 
Question 47 
Se menciona que se han introducidos cambios en el sistema aduanero basándose en cuestiones de 
seguridad. ¿En qué medida, estos cambios responden a la  necesidad de garantizar la oferta de bienes y 
servicios a los consumidores que no supongan ries gos a la vida, saludo o seguridad de los 
consumidores? 
 
Answer 
Changes recently introduced in the customs system s allow customs authorities to gather the necessary 
information to better evaluate whether goods presente d for imports may present a risk for life, health 
or safety of consumers, thus allowing for appr opriate action before the goods are placed on the 
market.  The recent changes also provide for a better co-operation between customs and other 
authorities (e.g. market surveillance authorities and health authorities) and reduce unnecessary controls on safe products, thus accelerating the trade flow for compliant products.  For further 
information, see also the replies to Question 64 from Argentina and Question 24 from US. 
 Question 48 
¿La seguridad del consumidor está contemplada en  sus medidas recientes de procedimientos de 
evaluación de la conformidad aplicable a toda la Unión Europea?  
Answer 
The question presumably refers to the New Legisla tive Framework, as descri bed at paras 80 and ff of 
Chapter III of the Report by the Secretariat.  Sp ecifically, Decision No. 768/2008/EC provides for a 
complete set of clear, transparent and coheren t conformity assessment procedures, thereby 
implementing in the EU regulatory system the conf ormity assessment toolbox developed by the ISO 
Conformity Assessment Committee.  It will be up to  the legislator to choose the most appropriate 
procedure(s), from the least to the most stringent , in proportion to the level of risk involved and the WT/TPR/M/248/Add.1 
Page 21 
 
 
  level of safety required.  These provisions are appl icable to any EU harmonizing legislation laying 
down requirements for the marketing of products, including measures aiming to protect consumer 
safety.  Question 49 
¿Qué medidas específicas han tomado para preven ir la importación de productos y/o servicios que 
puedan representar un daño a la salud o seguridad de  los consumidores en el caso de los productos 
provenientes de China, su principal fuente de importaciones?  
Answer 
As regards as non-food products, almost 60% of notifications in the EU's RAPEX rapid alert system 
for non-food products concern produc ts from Chinese origin.  Therefore, the EU has established a 
system providing AQSIQ with specific information on consumer products origi nating from China that 
have been identified as dangerous and consequently banned or withdrawn from the European market 
by EU Member States" authorities and notified to  the European Commission via RAPEX.  This so-
called "RAPEX-CHINA" system facilitates regular and rapid transmission of data between the EU 
and China, and AQSIQ has taken it upon itself to inv estigate all the notifications  it receives and, when 
necessary, adopts measures which prevent or restri ct further export of the specific hazardous 
products to the EU. 
 
On food and feed products, there is also a clo se collaboration with Chinese authorities, especially 
concerning the RASFF rapid alert system for food and feed products. China's authorities have been 
informed of all notifications concerning Ch ina via web application "RASFF Window". RASFF 
Window is an on-line database where notifications are uploaded within 24 working hours after transmission via RASFF system and can be accessed by Chinese authorized officers who have been 
granted access to it.  One of the legal measures ta ken in this area (and non-restricted to China) was 
the "Commission Regulation (EC) No 669/2009 of 24 July 2009 implementing Regulation (EC) No 
882/2004 of the European Parlia ment and of the Council as regards the increased level of official 
controls on imports of certain feed and food of non-animal origin and amending Decision 
2006/504/EC", which is regularly updated taken into  account improvements on the compliance to the 
EU law. In addition, the Commission experts exchange oth er information about safety requirements, market 
surveillance and anticipated policy developments  with Chinese under the working groups and 
dialogue established under the Memorandum of Un derstanding dating back to 2006.  Also, trainings 
and outreach activities have been organized covering food and non-food products.  Medidas que afectan a la producción y al comercio 
(i) Marco de la actividad empresarial y rég imen de inversiones extranjeras, numeral 147 
Question 50 
El nivel general de restricciones a la IED en la mayo ría de los Estados miembros de la UE es inferior 
al promedio de los países de la OCDE. Entre los Estados miembros, Esl ovenia, Luxemburgo, los 
Países Bajos, Portugal y Rumania aplican el nivel más bajo de restricciones a la IED, y Polonia el más 
alto.  Como término medio, las restricciones a la IED son mayores en los sectores de los bienes 
inmuebles, la pesca, el transporte, la agricultura y los medios de comunicación.  En general adoptan la 
forma de limitaciones a la participación en el capita l.  Otros obstáculos a la IED son las prescripciones 
relativas al personal esencial y a la reciprocidad  con respecto a las inversiones provenientes de 
terceros países; también se ha observado que los derechos especiales de los Estados miembros en 
ciertas empresas estatales restringen las inversiones. ¿Cómo se ha reflejado en los recientes ALC de la UE la reciprocidad exigida por algunos Estados mi embros en las listas de compromisos adoptados en 
el sector servicios en la medida en que la contraparte no puede discriminar entre los Estados miembros de la UE?   WT/TPR/M/248/Add.1 
Page 22  
 
 Answer 
As concerns the reflection of reciprocity requiremen ts by some Member States regarding investment 
from third countries in EU FTA's two approaches apply:  1) The requirements are reflected  in EU FTA's as a general EU limitation for a specific sector, 
which also captures the specific requirement of a Member State.  
For example, the reciprocity requirement indicate d in the report for Ireland regarding foreign 
acquisition of shipping vessels is captured by a gene ral reservation for the EU, as it applies to almost 
all Member States (See EU-Korea FTA:  "Unbound for establishment of a registered company for the 
purpose of operating a fleet under the national flag of the State of establishment"). 
In addition to this, some of the reciprocity requireme nts as indicated in the report are not covered by 
EU FTAs and therefore fall outside the scope of the FTA.  For example the reciprocity requirement of 
Germany, regarding establishment of airline enterp rises with headquarters abroad are not covered by 
EU FTAs.  2) The specific reciprocity requirement is not included in the FTA at all as an FTA is a 
reciprocal agreement in itself and therefore a bal anced result of reciprocal commitments by both 
Parties, whereby certain reciprocity requirem ents have been felt unnecessary to be kept. 
 Furthermore, Member States cannot introduce new reciprocity requirements regarding investments (if 
there is no restriction existing since Decemb er 1993 (December 1999 for certain Member States)) 
unless they were justified by other T reaty exceptions to be interpret ed narrowly according to the 
Court of Justice of the European Union.  
(iv) Contratación pública 
Question 51 
¿Por favor indique si la Unión Europea tiene un registro de proveedores para efectos de las 
contrataciones públicas? 
 
Answer 
As evidence of general professional capacity, contra cting authorities in the EU may, pursuant to 
Article 46, request suppliers to prove that they are enrolled in the professional or trade register or to 
provide a declaration on oath as described in annexes IX a, IX b and IX c of directive 2004/18/EC. 
 
Question 52 
¿Podría explicar bajo cuáles condiciones los pr oveedores de terceros países tendrían acceso a 
contrataciones regidas por normas nacionales?  Answer 
Suppliers from third countries have the right to participate and are granted national treatment in EU tendering procedures if an international agreement c oncluded by the EU in the field of public 
procurement grants them the right to do so (GPA or bilateral agreements with the EU).  In case there 
is no such an agreement or the agreement does not apply to the procurement in question, suppliers 
from third countries have no legal right to particip ate.  Usually, the agreements on international 
procurement concluded by the EU co ver procurement above the GPA thresholds. 
 Question 53 
En la medida de lo posible, ¿podría proporcionar abundar sobre el estado que guardan las discusiones 
de "contratación pública verde" en el marco del Ac uerdo de Contratación Públ ica de la Organización 
Mundial de Comercio? 
 WT/TPR/M/248/Add.1 
Page 23 
 
 
  Answer 
The EU has gained experience with combining green and  social considerations with the principle of 
best value for money.  The EU promotes a policy of  sustainable procurement, which means that public 
authorities seek to achieve the appropriate balan ce between the three pillars of sustainable 
development, the economic, social and environmenta l, when procuring for goods, services or works. 
Therefore, the EU believes that the GPA, as the only legally binding agreement in the WTO focusing 
on procurement shall also address the issue of sustainability and give correct guidance to the contracting authorities how to combine the green an d social considerations without compromising the 
principles of national treatment and non-discrimination.  
 
Question 54 
¿Podría dar dos ejemplos de la s disposiciones que los Estados miembros han adoptado en su 
legislación nacional para lograr objetivos ambienta les mediante el sistema de contratación pública? 
 
Answer 
The EU has a longstanding experience with Green  Public Procurement (GPP).  The GPP is a 
voluntary policy, the Member States and contractin g authorities can determine to which extent they 
implement it.  The basic concept of GPP relies on having clear, verifiable, justifiable and ambitious 
environmental criteria for products and services, based on a life-cycle approach and scientific evidence base.  To this end the EU has published a "B uying Green" Guide, which is a step by step by 
step guide for contracting authorities wishing to "green" their procurement.  Additionally, the EU 
provides contracting authorities with a "Toolkit" on G PP that contains the permitted criteria that they 
can use while procuring in a specific sector: fo r example: procurements of copying and graphic 
paper, IT equipment, catering services and others.  The toolkit is accessible electronically on the 
following website:  http://ec.europa. eu/environment/gpp/gpp_criteria_en.htm. 
 
Question 55 Respecto a la información provista en los párrafos 205 y 206, ¿hay disposiciones de apoyo a PYMES 
en los capítulos de contratación pública de los acuerdos bilaterales que la Unión Europea ha 
negociado recientemente? ¿Podr ía mencionar un ejemplo? 
 
Answer 
Through its bilateral agreements th e EU seeks to agree with its b ilateral partners on the application 
of substantial transparent and non-discriminatory pro cedural rules, based on the GPA standards. In 
doing so, the EU has in mind the interest of all of its suppliers, including SMEs, who form the bulk of 
the entrepreneurial base in the EU.  
As it is the case in the framework of the GPA, th e EU is a proponent of limiting restrictive government 
procurement rules and practices that prevent its companies (SMEs and others) from bidding 
effectively for public contracts in third countries.   In particular, where they exist, the EU strongly 
argues in favour of the elimination of the set-aside/preferences for domestic SMEs. 
 In addition, when negotiating market access commitmen ts with its bilateral partners, the EU also 
actively seeks to open up proc urement sectors that are still largely inaccessible to SMEs. 
 
(vi) Derechos de propiedad intelectual 
Question 56 
En relación con el punto 77, se menciona que la UE presta cooperación técnica en la esfera de la 
propiedad intelectual a un número significativo de países en desarrollo. ¿Podría explicar en qué 
consiste dicha cooperación y a qué países se ha otorgado o proporciona actualmente? 
 WT/TPR/M/248/Add.1 
Page 24  
 
 Answer 
EU technical cooperation that includes IPR cover many different activities such as assistance in 
drawing up legislation, helping to set up wo rking methods in the management of copyright, 
registration of trade marks and patents, traini ng personnel who work in the IPR government 
departments, training of judges specialised in IP ca ses, assistance in all areas of customs regulation 
and on-site inspections, etc.  A list of projects and countries can be found on the following specialised 
web site at:  http://trade.ec.europa.eu/doclib/press /index.cfm?id=328.  Technical cooperation from 
the EU and its member states is also reporte d to the TRIPs Council on an annual basis. 
 En relación con el Derecho de Autor y Derechos Conexos 
 
Question 57 
En el párrafo 229 se señala que en diciembre de 2009 la UE ratificó el Tratado sobre Derecho de 
Autor y el Tratado sobre Interpretación o Ejecución  y Fonogramas de la OMPI. ¿Podrían explicar 
brevemente cuáles son los mecanismos o reformas al  marco legal de la UE que se requerirán para la 
plena implementación de los Tratados de la OMPI sobre Internet? 
 
Answer 
All EU Member States have individually ratified th e WIPO Internet Treaties but the EU and its 
Member States had taken a formal decision in 2000 to  ratify the WIPO Intern et Treaties together. 
This was done on 14 December 2009.  The provisi ons of the 1996 WIPO Internet Treaties were 
already incorporated into Member States" natio nal legislation prior to 2009 through Directive 
2001/29/EC which transposed into Community law the main international obligations arising from 
the WCT and WPPT Treaties.  No further chang es to the EU legal framework are needed. 
 
Question 58 
Por lo que se refiere al punto 235, ¿Quién y cómo  se establece el monto del canon por copia privada, 
como una forma valida de compensación equitativa?  
Answer 
According to Article 5(2)b of Directive 2001/29/EC Member States may provide for an exception for 
private copying on condition that right holders receive fair compensation.  The Directive is neutral 
with respect to the form and means chosen to ensure  fair compensation.  Most Member States provide 
for fair compensation by levying certain goods that are typically used for the production of private 
copies (blank media, recording equipment, mobile listening devices, computers, printers, scanners, 
etc.).   
Because of the voluntary nature of this exception, its application is not uniform.  Therefore, as 
announced in the Communication on "A Single Market for Intellectual Property Rights" (COM (2011) 287 of 24.05.2011), in order to enable the smooth cro ss-border trade in the internal market of goods 
which are subject to private copying levies th e Commission will appoint a high level independent 
mediator in 2011 who will be responsible for reso lving outstanding issues amongst all interested 
parties with respect to private copying levies and which should lay the ground for comprehensive 
legislative action at EU level.  
Question 59 
En relación al punto 236, ¿Cómo funcionaría la cr eación de bibliotecas digitales, sin perjudicar los 
DPI de los titulares de la obras? 
 
Answer 
The legislative proposal on orphan works which the Commission adopted on 24 May 2011 (COM 
(2011) 289 final:  http://ec.europa.eu/internal_ma rket/copyright/orphan_works_en.htm) is based on 
the principle of a diligent search for the rights holders of copyright-prot ected works.  A diligent WT/TPR/M/248/Add.1 
Page 25 
 
 
  search must be carried out in ord er to determine whether a work is truly an orphan work or not.  This 
must be done before a library or archive can digitiz e and make the work available online as part of a 
digital library project.  The obligation to conduc t a diligent search therefore safeguards copyright.  
The proposal also contains provis ions which allow reappearing rights holders to fully assert their 
rights in the work.  With respect to the stakehol der dialogue on out-of-commerce works, copyright is 
safeguarded through negotiations a nd agreements between libraries, archives, rights holders and 
collecting societies in order to determine the ext ent to which such works can be digitized and put 
online.  
 
Question 60 
Conforme al punto 237, ¿Cómo se ha regulado en el contenido de las Directivas 2004/48 y 2000/31 la 
protección de los DPI en línea, para no afectar los derechos de los particulares a su privacidad? 
 
Answer 
In its Communication "A Single Market for Intellectual Property", adopted on 24 May 2011 
(available at:  http://ec.europa.eu/internal _market/top_layer/index_52_en.htm), the European 
Commission has announced that it in tends to propose, in the first half 2012, a revision of the IPR 
Enforcement Directive (Directive 2004/48/EC).  It has stated that it will identify ways to create a 
framework allowing, in particular, more effective co mbating of IPR infringements via the internet.  
Without prejudice to the outcome of the Impact Assess ment that will precede this revision, it is not the 
Commission's intention to promote at EU level ne w measures against end-users but rather to target 
the sources of IPR infringements committed through the Internet. 
 The Commission has taken the view that any ame ndments to the Enforcement Directive should have 
as their objective the tackling of infringements at th eir source and, to that end, foster cooperation of 
intermediaries, such as intern et service providers, while bei ng compatible with the goals of 
broadband policies and without prejudicing the interests of end-consumers.  The Commission has 
also stressed it will ensure that such amendments respect all fundamental rights recognized by the EU 
Charter of Fundamental Rights, in particular also  the rights to private life, protection of personal 
data, freedom of expression and informat ion and to an effective remedy. 
 As regards the Directive on electronic comm erce (2000/31/EC), the Commission is currently 
examining the feedback from stakeholders to a recent  public consultation on the future of electronic 
commerce in the internal market in the context of the implementation of this Directive.  
 
Question 61 
De acuerdo con el punto 238 y en relación con la HADOPI (Alta Autoridad para la Difusión de las 
Obras y la Protección de los derechos en Internet), quisiéramos preguntar: 
¿Cómo está integrada esta unidad? ¿Cuál es su natu raleza jurídica? Y ¿Cuáles son sus atribuciones? 
 
Answer 
HADOPI is a French independent public authority that has been set up by the law "Création et 
Internet" of 12 March 2009. HADOPI has legal personality.  Its mission is: 
- To promote the development of legal offer and to monitor the licit and illicit use of protected 
content on the internet; 
- To protect content against infringements of the rights attached to it;  and 
- To regulate on the use of technical protection measures. 
 
More information on HADOPI can be found at http://www.hadopi.fr/la-haute-autorite/presentation-
et-missions.html. 
 WT/TPR/M/248/Add.1 
Page 26  
 
 Question 62 
¿Cómo se complementa el régimen de protección de los derechos de propiedad intelectual de la Unión 
Europea con el régimen de protección de cada uno de los Estados miembros? 
 
Answer 
Article 2(1) of Directive 2004/48/EC specified that the Directive's provisions apply without prejudice 
to the means which are or may be provided for in national legislation, in so far as those means may 
be more favourable for right holders.  The Directive therefore only provides for minimum 
harmonization.  Article 2(3), furthermore sets out that Member States" international obligations and notably the TRIPS Agreement, as regards those rel ating to criminal procedures and penalties and any 
national provisions in Member States relating to criminal procedures or penalties in respect of IPR 
infringements are not affected by the Directive. 
 
Question 63 
¿El régimen de protección de los derechos de pr opiedad intelectual de la Unión Europea prevé 
sanciones para los infractores de derechos de autor y derechos conexos? De ser el caso, que tipo de 
sanciones aplica?  
Answer 
At the level of the EU, Directive 2004/48/EC provides  for a toolbox of measures that right holders 
and other persons entitled to use their rights (such as licensees) can take against infringers of their 
intellectual property rights.  In particular, they a re entitled to request a court to issue injunctions 
aimed at preventing an imminent infringement of an intellectual property right and/or forbidding the 
continuation of the alleged infringements of that  right (under certain conditions as the continuation 
can be made subject to the lodging of guarantees intended to ensure the compensation of the right 
holder).  They can furthermore request the recall of  goods infringing their intellectual property rights 
and the removal from the channels of commerce and they can request damages from the infringer. 
Finally, the judicial authority can order that its decision confirming the infringement be published. 
As set out in the reply to question 61, Member States have the possibility to provide for additional 
measures that are more favourable to right hold ers, and in particular for criminal sanctions. 
 
Question 64 
¿El régimen de protección de los derechos de prop iedad intelectual de la Unión Europea prevé la 
protección de los editores de libros? De ser el caso cual es la duración de la protección?  
Answer 
There is no specific provision for publishers' rights in the EU acquis. Related rights in the acquis exist 
for performers, phonogram producers, film producers and broadcasting organiza tions.  Publishing 
agreements normally govern the way authors' ri ghts are transferred, assigned or licensed to 
publishers.  
 
Question 65 
¿El régimen de protección de los derechos de prop iedad intelectual de la Unión Europea prevé la 
protección de los organismos de radiodifusión?  De  ser el caso cual es la duración de la protección? 
 
Answer 
Broadcasting organizations enjoy protection under so-ca lled "related rights" in the EU acquis (see 
e.g. Directive 2006/115/EC and 2001/29/EC).  Article 3(4) of Directive 2006/116/EC grants 
broadcasting organizations a term of protection which shall expire 50 years after the first 
transmission of a broadcast, whether this broadcast is  transmitted by wire or over the air, including 
by cable or satellite. 
 WT/TPR/M/248/Add.1 
Page 27 
 
 
  Question 66 
¿En materia de observancia, la Directiva 2001/ 29 relativa a los derechos de autor establece 
disposiciones  sobre protección jurídica y recursos jurídicos contra la acción de eludir medidas 
tecnológicas, así como contra la supresión o alteraci ón de información electrónica sobre la gestión de 
derechos? 
 
Answer 
Article 6 of Directive 2001/29/EC states that Memb er States shall provide adequate legal protection 
against the circumvention of any effective technologi cal measures.  Technological measures shall be 
deemed "effective" where the use of a protected work or other subject-matter is controlled by the right 
holders through application of an access control or protection process, such as encryption, 
scrambling or other transformation of the work or ot her subject-matter or a copy control mechanism, 
which achieves the protection objective.  The Directive does not specify the way that Member States should provide for such legal protection 
against circumvention and so are the refore free to implement civ il and/or criminal remedies as 
necessary.  
 En relación con las Patentes  Question 67 
En relación con el punto 242, nos podría mencionar cómo funcionaría la patente unitaria o única, 
quien sería la autoridad administradora (EPO). 
 
Answer 
According to the European Commission's proposal on unitary patent protection, any inventor who 
has been granted a European patent by the Eur opean Patent Office (EPO) can request a unitary 
effect to be attached to their patent.  The unita ry effect ensures uniform protection throughout the 25 
Member States participating in the enhanced co operation and such a patent can be limited, 
transferred, revoked or lapse only in respect of a ll participating Member States.  Renewal fees will 
have to be paid to the European Patent Organizati on by the patent holder.  The administration of 
European patents with unitary effect will be carried out by the EPO.  
 
Question 68 
De acuerdo con este mismo punto me podría señalar  si se prevé que los Estados Miembros puedan 
oponerse ante el otorgamiento de una patente unita ria en el marco de la cooperación reforzada o 
simplemente protegerán la patente en su territorio.  Answer 
As explained under Question 67, on ce the holder of a European paten t requests unitary effect at the 
EPO, he/she will obtain this protection to the terr itories of the 25 participating Member States.  Such 
a patent can be limited, transferred, revoked or l apse only in respect of all participating Member 
States.  For the territories of the EU Memb er States who do not take part in the enhanced 
cooperation, patent protection needs to be obtained country by country. 
 
Question 69 
En el mismo punto 242 se menciona que los esfue rzos de crear una patente unitaria y un tribunal 
unificado de patentes de la UE no han tenido éxito. ¿Dir ía que la falta de éxito en estos esfuerzos se 
debe exclusivamente al régimen de traducción, o existen en su opinión otros aspectos que han 
contribuido a que los intentos no hayan sido exitosos? 
 
Answer 
The specific dual legal basis introduced by the Lis bon Treaty for the creation of European intellectual 
property rights requires that the translation arr angements for European intellectual property rights WT/TPR/M/248/Add.1 
Page 28  
 
 are adopted by unanimity.  While the Commission adopted a proposal for a regulation on these 
arrangements for the EU patent, the 27 Member  States could not reach a unanimous agreement on 
this matter. 
 
En relación con las Indicaciones Geográficas 
 
Question 70 
En relación con el punto 251, se mencionan tres métodos para el registro y protección de las 
indicaciones geográficas, la pregunta es: ¿se puede re gistrar un mismo producto a través de los tres 
métodos? y ¿Cuál de estos tres métodos  tiene un mayor grado de protección? 
 
Answer 
The EU system of protection of geographical indications (PDO-PGI) for agricultural products and 
foodstuffs, spirits and wines is exclusive: names c annot be protected as geographical indications 
under national systems of the Member States, with the exceptions of provisional protection in certain 
cases, awaiting a decision on registration at EU  level and of national geographical indications 
protected prior to 1 August 2009. 
 
Question 71 
En relación con el punto 253 – 254, ¿Cuál es el órgano de la Comisión Europea, encargado del 
dictamen de las solicitudes de las indicaciones geográficas y cuáles son las condiciones o requisitos 
con los que debe cumplir una indicación geográfica extranjera?  
 
Answer 
As regards agricultural products , foodstuffs, wine and spirit drinks Directorate General for 
Agriculture and Rural Development of the European Commission is competent for the registration of 
PDOs/PGIs.  The legal requirements are laid down  in Regulations (EC) No 1234/2008, (EC) No 
110/2008 and (EC) No 510/2006 and apply both to EU and third countries applications.  
 
Question 72 
Las indicaciones geográficas están protegidas principalmente en virtud de los Reglamentos 
No 1234/2007 (para los vinos), No 10/2008 (para las bebidas espirituosas), y No 510/2006 (para los 
productos agrícolas y alimenticios), en forma de denominaciones de origen protegidas o indicaciones 
geográficas protegidas.  En diciembre de 2010, la Comisión presentó una propuesta de Reglamento sobre los regímenes de calidad de los productos agrí colas.  Entre otras cosas, proponía reformar el 
régimen de indicaciones geográficas definiendo con más precisión los criterios de admisibilidad, reduciendo el proceso de aplicación, e invitando a los grupos de productores a asumir una función 
administrativa más importante. ¿En qué consistiría específicamente esa función administrativa más 
importante?  
Answer 
Article 42 (Role of groups) of the Commission pr oposal for a Regulation on agricultural product 
quality schemes provides clarification on the role of groups. 
Art. 42 Role of groups 
Without prejudice to specific provisions on produ cer organizations and inter-branch organizations as 
laid down in Regulation (EC) No  1234/2007, a group is entitled to: WT/TPR/M/248/Add.1 
Page 29 
 
 
  (a) contribute to ensuring that the quality of  their products is guaranteed on the market by 
monitoring the use of the name in trade and, if necessary, informing competent authorities as 
referred to in Article 33, within the framework of Article 13(3);  
(b) develop information and promotion activities aiming at communicating the value adding 
attributes of the product to consumers; 
(c) develop activities related to ensuring complian ce of a product with its specification;  
(d) take action to improve the performance of the scheme, including developing economic 
expertise, carrying out economic analyzes, diss eminating economic information on the 
scheme and providing advice to producers.  
 
Question 73 
En relación con el punto 255, ¿Cuál es la instituci ón encargada de la Base de Datos de Origen y 
Registro; el Registro de Vinos;  y el Registro de Bebidas Espirituosas de indicaciones geográficas? Asimismo, se podría menci onar si las oficinas de propiedad industr ial de los 27 estados miembros y la 
OAMI están obligadas a revisar estas bases de datos cu ando se solicita el registro de una marca.  
 
Answer 
The European Commission (Directorate General fo r Agriculture and Rural Development) is the 
institution responsible for the registration of PDOs /PGIs.  Member States trade marks offices and the 
OHIM shall not register as trademark a sign whic h contains or consists of a PDO/PGI. 
 
Question 74 
En relación con el punto 256, ¿Las indicaciones ge ográficas de terceros países reconocidas mediante 
acuerdos bilaterales, están contenidas en las bases de datos mencionadas anteriormente o existe una 
base de datos especial para éstas?   Answer 
Third countries wine and spirit GIs protected by virt ue of bilateral agreements are listed in these 
agreements.  Names for wines are also listed in  the database "E-Bacchus" available online at: 
http://ec.europa.eu/agriculture/markets/ wine/e-bacchus/index.cfm?&language=en. 
 
Question 75 
En relación con el punto 252 y 258, se indican diversas leyes que protegen las indicaciones 
geográficas, al respecto me podría mencionar si las autoridades encargadas de la aplicaciones de estas 
leyes pueden actuar de oficio o es necesario que la pa rte interesada realice las acciones pertinentes.  
 
Answer 
National competent authorities of EU Member States can act on their own initiative.  
 
Question 76 
En relación con el punto 258, ¿Cómo se prot egen en materia Aduanera a las indicaciones 
Geográficas?  Answer 
On substance, it can be distinguished between granting protection to GIs and other Intellectual 
Property Rights, enforcement of such rights, and oth er customs procedures.  Provisions related to 
enforcement of IP rights in the EU are laid do wn in Directive 2004/48/EC on the enforcement of 
intellectual property rights and in Council Regulat ion (EC) 1383/2003 concerning customs action 
against goods suspected of infringing certain intellect ual property rights and the measures to be taken 
against goods found to have infringed such rights.  The administrative organization of the enforcement of GI protection is the competence of EU Member States.  WT/TPR/M/248/Add.1 
Page 30  
 
 En relación con la Observancia de los DPI 
 
Question 77 
Del contenido del punto 259, se desprende que existe n autoridades encargadas de hacer cumplir el 
control interno de la observancia de los DPI en el  territorio de los Estados de la Unión Europea, 
distintas a las aduanas, ¿Cuáles son estas autoridades, y que facultades tienen? 
 
Answer 
As set out in the reply to question 63, Directiv e 2004/48/EC provides for a number of measures that  
can be taken by the judicial authorities by the Member States in order to prevent or stop 
infringements of intellectual property rights.  In addition, in each Member State different authorities 
are competent to take certain measures.  Which authorities they are and their competences differ from 
Member State to Member State.  These can e.g. be police authorities, public prosecutors and national 
trademark or IP offices. 
 
Question 78 
Conforme al punto 260, nos interesaría preguntar, ¿Exi sten autoridades, además de las aduaneras, que 
tengan facultades para iniciar de oficio la suspensi ón del despacho de las mercancías o proceder a su 
retención si se sospecha que infringen un DPI?  
Answer 
In accordance with Article 10 of  Directive 2004/48/EC, the judicial authorities of the EU Member 
States have the power to order, at the request of the applicant, that appropriate measures be taken 
with regard to goods that these judicial author ities have found to be infringing an intellectual 
property right and, in appropriate ca ses, with regard to materials and implements principally used in 
the creation or manufacture of those goods.  Accordi ng to that article, such measures shall include 
the recall from the channels of commerce, the defin itive removal from the channels of commerce or 
destruction. Given that the Directive only provides for minimu m harmonization (see reply to question 62) Member 
States have the possibility of also assi gning such powers to other authorities. 
 
Question 79 
De acuerdo con el punto 264, ¿Cómo se determina si  es susceptible de revisión una mercancía por 
parte de aduanas?  
Answer 
EU customs authorities have the right to control all goods for IPR purposes in any of the situations 
referred to in Article 1(1) of the Council Regul ation (EC) No 1383/2003 of 22 July 2003 concerning 
customs action against goods suspected of infr inging certain intellectual property rights and the 
measures to be taken against goods foun d to have infringed such rights. 
 As set out in Article 13 of the Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing 
the Community Customs Code, Customs authorities may carry out all the controls they deem 
necessary to ensure that customs rules and other legi slation - including the protection of intellectual 
property - governing the entry, exit, transit and trans fer of goods moved between the customs territory 
of the Community and third countries and the presen ce of goods that do not have Community status 
are correctly applied.  
Customs controls are to be understood as the spec ific acts performed by the customs authorities in 
order to ensure the correct applicatio n of the above mentioned legislation;  such acts may include 
examining goods, verifying declaration data and th e existence and authenticity of electronic or 
written documents, examining the accounts of undert akings and other records, inspecting means of WT/TPR/M/248/Add.1 
Page 31 
 
 
  transport, inspecting luggage and other goods carr ied by or on persons and carrying out official 
inquiries and other similar acts. Customs controls, other than spot-checks, are ba sed on risk analysis using automated data processing 
techniques, with the purpose of identifying and quantifying the risks and developing the necessary 
measures to assess the risks, on the basis of criteria developed at national, Community and, where 
available, international level.  
Question 80 
Por lo que se refiere al punto 265, nos interesaría preguntar lo siguiente: 
¿Cómo funciona el Observatorio Europeo de la Fa lsificación y la Piratería?, y ¿Qué resultados y 
avances se han obtenido desde su creación? 
 
Answer 
The European Observatory on Counterfeiting and Piracy was launched in 2009 and is coordinated by 
the European Commission.  It brings together rep resentatives from Member States administrations, 
private industry and consumer organizations to impr ove efforts to combat a rising problem that 
threatens consumer health and safety, busin ess, jobs and national and local economies. 
The Observatory is a pan European platform that w ill collect key data related to counterfeiting and 
piracy;  it will also identify and share best prac tices, and help to raise public awareness.  More 
information on the Observatory and its objectives can be found on the Commission's website at:  
http://ec.europa.eu/internal_market/ip renforcement/observato ry/index_en.htm. 
On 24 May 2011, the Commission has proposed to the European Parliament and the Council a 
regulation that is to reinforce the Observatory by entrusting its tasks to the Office for Harmonization 
in the Internal Market (OHIM) and to add new ta sks such as coordinating training measures for 
enforcement authorities, promoting research in tec hnical tools to prevent counterfeiting and piracy 
and to foster international cooperation. 
Question 81 
Respecto al punto 266, ¿Cómo funcionan y quienes in tegran los sistemas rápidos de intercambio de 
información a los que se refieren en este apartado?  
Answer 
The 2010 study on rapid inform ation exchange systems for enforcem ent referred to by Mexico 
examines existing electronic information exchange syst ems that have been set up at EU or national 
levels in various policy areas.  The study assesses the actual needs for administrative cooperation and 
information sharing on count erfeiting and piracy between administrative and operational 
enforcement agencies from different Member States, and examines the suitability of the existing IT 
systems for forming the basis of a possible EU IT system for the fight against counterfeiting and 
piracy. 
 The full text of the study is available at: http://ec.europa.eu/internal_marke/ipre nforcement/docs/study_information_en.pdf. 
 
Question 82 
Por último y en relación con el punto 269, quisié ramos saber ¿En qué se distinguen los acuerdos de 
cooperación no preferenciales a los de libre comercio  en cuanto al tema de observancia de DPI? 
 
Answer 
Trade related provisions in a Free Trade Agreem ent can be more detailed and technical than in 
cooperation agreements which generally contain provisions of a more political nature and do not WT/TPR/M/248/Add.1 
Page 32  
 
 include preferential tariffs.  This being said, in term s of IPR provisions contained in either type of 
agreement, there are no particular differences. 
 
IV. EVOLUCIÓN EN DETERMINADOS SECTORES  
(2) C
OMERCIO DE SERVICIOS  
(i) Introducción  
 Question 83 
En el párrafo 51 se menciona que la Directiva sobr e los servicios no armoniza la legislación nacional 
aplicable al sector de los servicios, pero obliga a los Estados miembros a efectuar un cribado de sus 
regímenes de autorización a fin de garantizar que se mantengan solamente si no son discriminatorios, 
están justificados por una razón imperiosa de inte rés general y son proporcionados. México desearía 
saber en qué base de datos se puede encontrar la legi slación en materia de servicios de los países de la 
Unión Europea.  Deseamos conocer por qué causa en  el presente examen no se hace referencia a la 
situación de los servicios profesionales.   Answer 
Information concerning rules and requirements re gulating service activities in the Member States of 
the EU can be found on each Member State Points of Single Contacts. The easiest way to access this Poin ts of Single Contact (P.S.C.) is through the EUGO network portal: 
http://ec.europa.eu/internal _market/eu-go/index_en.htm. 
 
Professional Services, business Services as well as Services to consumers were covered by the 
Services directive.  Without being exhaustive, the following services (including certain professional services) can be mentioned as examples of services co vered by the Directive:  the activities of most of the regulated 
professions (such as legal and fiscal advisers, architects, engineers, accountants, surveyors),  
craftsmen, business-related services (such as offi ce maintenance, management consultancy, the 
organization of events, recovery of debts, advertis ing and recruitment services), distributive trades 
(including retail and wholesale of goods and services), services in the field of tourism (such as services of travel agencies), leisure services (such as services provided by sports centres and amusement parks), construction servic es, services in the area of in stallation and maintenance of 
equipment, information services (such as web por tals, news agency activities, publishing, computer 
programming activities), accommodation and food services (such as hotels, restaurants, catering 
services), services in the area of training and educ ation, rental (including car rental) and leasing 
services, real estate services, certification and tes ting services, household support services (such as 
cleaning services, private nannies or gardening services), etc. 
 
(ii) Servicios financieros 
 
(a) Banca 
(b) Seguros 
Question 84 
En el párrafo 54 se indica que las entidades de crédito de países que no son miembros de la UE 
podrán valerse del pasaporte único siempre que establ ezcan una filial en un Estado miembro de la UE. 
Deseamos conocer cómo aplica el principio de pasap orte único para países no miembros de la Unión 
Europea.  Answer 
Once an undertaking is established in the EU as a subsidiary, it is deemed to be an EU company, 
regardless of ownership and thus bene fits from the internal market (the passport) in the same way as WT/TPR/M/248/Add.1 
Page 33 
 
 
  an EU-owned EU company.  Thus, once a bank is est ablished as a subsidiary in one Member State, it 
can supply services throughout the EU without add itional authorization from other EU Member 
States. 
Question 85 
En el párrafo 60 se indica que un aspecto importante de la Directiva Solvencia II es que otorga a la 
Comisión Europea la facultad de evaluar si el régi men de solvencia que un tercer país aplica es 
equivalente al aplicado en la UE.  Deseamos conocer  en qué forma afecta la Directiva Solvencia II a 
las compañías de seguros de un tercer país que desean establecerse en la UE.  
 
Answer 
The equivalence requirement does not affect insuran ce companies wishing to establish in the EU, but 
only third-country insurance companies wishi ng to supply services cross-border into the EU. 
 (iii) Transporte 
 
(c) Transporte marítimo 
(d) Transporte aéreo 
Question 86 
En el párrafo 86 se señala que comprometida con la competencia abierta y justa en el sector del 
transporte marítimo y también con el transporte ma rítimo de calidad, la UE colaborará para alcanzar 
esos objetivos con sus interlocutores en foros internacionales tales como la OMI, la OIT, la OMC y la 
OMA, así como a través de su sólida red creciente de acuerdos bilaterales en materia de transporte 
marítimo. ¿Podrían indicarnos con qué países tienen suscritos acuerdos bilaterales?  Answer 
The EU concluded in 2002 a bilateral maritime tr ansport agreement with China.  This agreement 
includes provisions on e.g. market acces s in maritime transport and maritime safety, 
maritime education and training.  The EU-China maritime agreement entered  into force in 2008.  
 The EU has furthermore concluded a number of  Free Trade Agreements, Partnership and Co-
operation Agreements, EPAs and Association Agreements , which include maritime provisions.  The 
most recently bilateral agreements which contain such  provisions the EU has concluded with Korea, 
the Central American countries and Peru-Colombia. 
 
Question 87 
En el párrafo 92 se menciona que la ampliación de los beneficios del mercado único de la aviación a 
otros países es uno de los principales objetivos de la UE, y se basa en tres pilares:  i) la actualización de los acuerdos bilaterales de los Estados miembros para garantizar la seguridad jurídica y poner todas 
las líneas aéreas de la UE en igualdad de condicion es en lo que se refiere a los vuelos dirigidos a 
países no pertenecientes a la UE;  ii) el establecimien to de una zona común de aviación con los países 
vecinos del Mediterráneo y la re gión sudoriental, y iii) el establecimiento de zonas de aviación 
abiertas con otros interlocutores internacionales, por ejemplo el Canadá, el Brasil, China, la India, 
Australia, Nueva Zelandia y Chile. Con respecto a la actualización de los acuerdos bilaterales de los 
Estados Miembros, desearíamos saber con qué países tiene acuerdos bilaterales la UE. 
 
Answer 
In the context of the implementation of the first pilla r of the EU external aviation policy which aims at 
bring in line with EU law the existing bilat eral air services agreements (ASA) between the EU 
Member States and third countries concerned, the EU  has concluded 43 so-called "horizontal" 
agreements with the third countries listed belo w, concerning in total 702 bilateral ASA. WT/TPR/M/248/Add.1 
Page 34  
 
 A "horizontal" agreement brings into  conformity with EU law all existing ASA between the EU MS 
and the third country concerned.    
1. Albania 
2. Armenia 
3. Australia 
4. Azerbaijan 
5. Bangladesh 
6. Bosnia-Herzegovina 
7. Brazil 
8. Canada (as part of the EU-Canada comprehensive aviation agreement) 
9. Cape Verde 
10. Chile 
11. Croatia 
12. Former Yugoslav Republic of Macedonia 
13. Georgia 
14. India 
15. Indonesia 
16. Israel 
17. Jordan 
18. Kazakhstan 
19. Kyrgyzstan 
20. Lebanon 
21. Malaysia 
22. Maldives 
23. Mexico 
24. Moldova 
25. Mongolia 
26. Morocco 
27. Nepal 
28. New Zealand 
29. Pakistan 
30. Panama 
31. Paraguay 
32. Peru 
33. Saudi Arabia 
34. Serbia and Montenegro 
35. Singapore 
36. South Korea 
37. Turkey 
38. UEMOA (it is a regional agreement with all UEMOA Member States(4) 
39. Ukraine 
40. United Arab Emirates 
41. United States (as part of the EU-US comprehensive aviation agreement) 
42. Uruguay 
43. Viet Nam 
 
                                                      
4 Union économique et monétaire ouest africaine  (West African Economic and Monetary Union) 
Member States (8):  Benin, Burkina Faso, Côte d'Ivoire, Guinea-Bissau, Mali, Niger, Senegal and Togo. WT/TPR/M/248/Add.1 
Page 35 
 
 
  (iv) Telecomunicaciones y servicios postales  
(a) Telecomunicaciones  
Question 88 
En el párrafo 100 se señala que aunque la demanda  de servicios de alta velocidad aumenta con 
rapidez, el despliegue de las redes de acceso de nueva generación (NGA) se halla aún en una etapa 
inicial de desarrollo en Europa, donde el acceso a Internet se realiza predominantemente a través de 
líneas telefónicas de cobre y redes de televisión por cable.  Por consiguiente, el marco reglamentario 
debe estimular simultáneamente la realización de inversiones sustanciales del sector privado en redes de alta velocidad y la competencia en el mercado de  servicios de banda ancha. Desearíamos saber si el 
marco reglamentario hace referencia al tratam iento que se otorga a las empresas extranjeras que 
desean participar en la UE en el sector de telecomunicaciones. 
 
Answer 
The regulatory framework (in particular, Directiv e 2002/20/EC of the European Parliament and of 
the Council of 7 March 2002 on the authorizatio n of electronic communications networks and 
services Authorization Directive) does not foresee any discrimination vis-à-vis foreign companies 
interested in investing in EU communications markets.   Article 3(1) of the Authorization Directive stat es:  "Member States shall ensure the freedom to 
provide electronic communications networks and services,  subject to the conditions set out in this 
Directive. To this end, Member States shall not  prevent an undertaking from providing electronic 
communications networks or services, except where this  is necessary for the reasons set out in Article 
46(1) of the Treaty".  These reasons (now set out in new Article 52(1) of the Treaty for the Functioning of the European Union) are based on grounds  of public policy, public security and public 
health.  
MEXICO IV 
WT/TPR/S/248 - Página viii, Párrafo 9 
Question 89 
¿Cuál es el impacto o distorsiones en la competencia en aquellos sectores que han recibido ayuda de 
los Estados miembros de la UE, como el sector financiero, del automóvil, la construcción y el 
turismo? ¿Qué plazo se está considerando para eliminar estas ayudas? 
 
Answer 
The EU's State aid control has been effective in mitigating distortions of competition across Member 
States and banks within the Single Market which have b een created by such aid.  The most efficient 
means that allowed the Commission to minimize these distortions has been the imposition of far 
reaching restructuring measures on all main beneficiaries of aid. 
To date and given the data at hand, the levels of St ate aid and their concentration do not seem to have 
significantly altered the structure of the European banking sector as a whole.  The rapid expansion of 
the sector in terms of aggregate balance sheet size was stopped in 2008 and the concentration trend affecting the sector since 2001 was not markedly  accelerated as a consequence of its on-going 
restructuring.  The aid granted to selected banks between October 2008 and December 2010 does not 
seem to have affected the market  performance of non-aided banks:  these banks have performed 
markedly better than aided banks throughout the period.   However, it is still too early to draw any 
definitive conclusions on the impact of  aid on competition in the financ ial sector, not least because the 
structural measures included in restructuring obli gations have not yet been fully implemented. WT/TPR/M/248/Add.1 
Page 36  
 
 As regards other sectors, the Temporary Fram ework for the real economy foresaw, promoted 
companies access to finance  by providing the Member States with the possibility to grant a limited 
amount of aid up to €500 000 per company, subsid ised loans and guarantees, more flexible risk 
capital funding and trade financing.  A specific measure allowed for subsidised loans for the 
production of green products.  The Temporary Fram ework is open to all sectors of the economy, and 
does not contain any specific prov isions regarding the automotive sector.  While State aid schemes 
under the Temporary Framework have been compli ant with this requirement of horizontal 
application, in practice many Member States have used it to support their automotive sectors.  This is 
because the automotive sector was particularly hit by the financial and economic crisis. 
It is difficult to assess how effective the Temporar y Framework has been.  Such Framework has de 
facto been applied mostly to small and medium sized enterprises.  Generally speaking aid to SMEs is 
considered to be less distortive of competition at EU level than aid to large companies.  Given that SMEs were particularly hit by the credit crunch, the Temporary Framework can be expected to have 
increased efficiency through supporting SMEs' pro duction and investment, without this leading to 
significant distortions competition given that SMEs  are less likely than large firms to have market 
power that can be used to implement exclusionary practices.   
As was the case with the aid granted to financial  institutions, State aid control by the Commission 
allowed minimising competition distortions with in the real economy by preventing potentially 
discriminatory responses by Member States, such as those that would have made aid conditional on 
the location of the firms' activities or the use of s uppliers based in the Member State concerned, for 
example in the car sector. 
These measures adopted in the context of the financial and economic crisis had an exceptional nature 
and therefore were limited in time (until the end of 20 10).  The Commission's priority now is to ensure 
an appropriate exit from these e xceptional measures that encour ages the economic recovery.  
The rolling back process has already started with  a gradual phasing out.  On 1 December 2010 the 
Commission decided to prolong some of these measures until 31 December 2011 but subject to 
stricter conditions keeping in mind that the main obj ective is to return to the normal rules as soon as 
possible when the financial situation normalizes.  In particular, in deciding on the phasing out of the 2011 Temporary Framework, the Commission will 
assess in due time the evolution of the econom ic situation, the Temporary Framework's 
appropriateness in sustaining the economic recovery,  its effects on competition between firms and 
across Member States as well as the availability  of access to finance based on the companies" 
creditworthiness. 
WT/TPR/S/248 - Página 79, Párrafo 163 Question 90 
¿Bajo qué criterios definen los plazos para c onceder ayuda estatal a determinados sectores? 
 
Answer 
Aid under the block exemption regulations does not n eed to be notified to the European Commission.  
When an aid is notified to the European Commission, a decision must be taken within two months. 
This deadline counts as of the moment the notificatio n is deemed complete.  In the cases in which aid 
is put into effect without awaiting the approval  of the European Commission, this deadline does not 
apply.  Both for notified and non-notified aid, the European Commission must decide whether the aid 
is compatible with the common ma rket or whether it initiates an fo rmal investigation procedure in WT/TPR/M/248/Add.1 
Page 37 
 
 
  case of doubts on the compatibility of the aid.  Criteri a to assess the compatibility of aid are spelt out 
in a series of guidelines. 
Once an investigation is initiated, the European Co mmission has eighteen months to close the case 
with a positive, a negative or a conditional decision. 
These procedures apply for aids to all sectors. 
For more information, please visit:  http://ec.eu ropa.eu/competition/state_aid/legislation/rules.html. 
WT/TPR/S/248 - Página 95, Párrafo 213 Question 91 
¿Qué mecanismos prevé la Comisión para asegurar una competencia efectiva en el sector de los 
vehículos automóviles, que garantice que l as pequeñas y medianas empresas de la cadena de 
suministro del automóvil gocen de condiciones favorables? 
 
Answer 
The automobile sector is subject to the same State aid rules in the EU as other industry sectors. 
Information on these rules is available on th e European Commission website, and includes incentives 
for SME"s under certain conditions.  During th e financial and economic crisis the European 
Commission has been particularly attentive to State aid projects by Member States in favour of the 
automobile sector, in order to prevent that State aid is  used as a disguised form of protectionism that 
would be contrary to the rules of the EU Inter nal Market.  The objectives of maintaining a level 
playing field in this sector also have in direct positive effects for the supply chain. 
JAPAN I 
 
Secretariat's report (WT/TPR/S/248)  III. TRADE POLICIES AND PRACTICIES BY MEASURE (3) M
EASURES AFFECTING PRODUCTION AND TRADE  
(vi) Intellectual property rights 
Question 1 (Page 90, paragraph 236) 
According to the Secretariat's Report, two proposal s on how to deal with "orphan works" and out -of-
commerce works in digital libraries and archives were made in 2011.  We would like to have further 
information on the contents of the two proposals and how the EU would implement such proposals? 
 
Answer 
The Commission adopted a proposal for a directi ve on certain permitted uses of orphan works (COM 
(2011) 289 final:  http://ec.europa.eu/int ernal_market/copyright/o rphan_works_en.htm) on 
24 May 2011.  The proposal is based on the mu tual recognition of the orphan work status - as 
determined by a diligent search in the country of its first publication - throughout the EU.  This will 
help European citizens to have access to digital li braries across borders.  The scope of the proposal 
covers printed works and images embedded therein, and audio/audio-visual archives.  The proposal 
will be subject to negotiations between the Counc il and the European Parliament in the coming 
months after which Member States will implem ent the directive into their national laws.  
 
With respect to out-of-commerce wo rks, the Commission has not made a legislative proposal but is 
chairing a stakeholder dialogue amongst libraries, authors, publishers and collecting societies with 
the aim of agreeing on key principles to facilitate the licensing of rights in out-of-commerce works 
and enable their digitisation and making available.  WT/TPR/M/248/Add.1 
Page 38  
 
 Question 2 (Page 91, paragraph 238) 
We would like to know whether the EU intends to promote a three strikes law to all EU member 
states, similar to the one France adopted.  If not, please provide us with information on the countermeasures the EU takes against co pyright infringement on the internet. 
 
Answer 
In its Communication "A Single Market for Intellectual Property", adopted on 24 May 2011 
(available at http://ec.europa.eu/internal_m arket/top_layer/index_52_en.htm), the European 
Commission has announced its intent ion to propose, in the first half 2012, a revision of the IPR 
Enforcement Directive (Directive 2004/48/EC).  
In this context, the Commission stated that it w ill identify ways to create a framework allowing, in 
particular, combating infringements of IPR via the internet more effectively.  The Commission has 
taken the view that any amendments to the En forcement Directive should have as their objective 
tackling the infringements at their source and, to t hat end, foster cooperation of intermediaries, such 
as internet service providers, while being com patible with the goals of  broadband policies and 
without prejudicing the interests of end-consumers. 
 The Commission has also stressed it will ensure that  such amendments respect all fundamental rights 
recognized by the EU Charter of Fundamental Right s, in particular the rights to private life, 
protection of personal data, freedom of expression and information and to an effective remedy.  
IV. DEVELOPMENTS IN SELECTED SECTORS 
(2) 
TRADE IN SERVICES  
(iv) Telecommunications and postal services 
Question 3 (Page131, paragraph 96) 
With respect to the "telecoms reform packag e" which was announced in December 2009, the 
Secretariat's report says that the transposition of  the revised regulatory framework into national 
legislation by the 27 member States should be completed by May 2011.  Could the EU explain 
distinctly the current state of th e transposition by the EU members? 
 
Answer 
The EU Member States must notify the national transposition measures to the European Commission, 
which will analyze them carefully.  Several Memb er States have notified the national measures to the  
Commission, while others are currently  in the final stages of transposing the revised EU rules into the 
national legislation.  The Commission monitors th e transposition process closely, and may take legal 
action against Member States in case of lack of transposition, if necessary.  
Question 4 (Page131, footnote 92) According to the Secretariat's Report, the EU h as adopted a regulation which reduces the retail price 
ceilings for certain roaming calls.  Due to the roam ing price cuts among the EU member countries, it 
is expected that the international roaming price between EU members and other countries will further 
increase.  Japan is concerned about the fact that  this causes unfair discriminatory measures against 
carriers outside the EU member countries.  Furtherm ore, please explain how this measure consistent 
with EU's GATS obligations. 
Does the EU adopt any measures to conform to its commitments? If it does, please explain the 
measures.   
Answer 
The EU's Roaming Regulation is a single market in strument and as such applies only to roaming 
services within the EU.  The scope of the Roaming Regulation covers intra-EU traffic, when customer 
of one EU network roams on a network of another EU  operator's network.  At  the same time EU's 
Roaming Regulation does not prevent EU and non-EU operators from freely negotiating tariffs for WT/TPR/M/248/Add.1 
Page 39 
 
 
  "international roaming".  Indeed they could use the Roaming Regulation figures to provide a 
benchmark. Any price reductions following such negoti ations by mobile operators would be welcome. 
The EU roaming regulation does not imply any price increases for roaming services between EU 
members and other countries. At wholesale level, the inter-operator prices are determined as a result 
of commercial negotiations between operators, in wh ich the price is determined inter alia based on 
the exchange of traffic between operators in countr ies in question.  At retail level, the roaming 
Regulation has set caps at levels which prevent excessive prices but leav es sufficient room for 
covering roaming costs.  Therefore, the roaming re gulation as such does not give rise to any price 
increases for extra-EU roaming charges.  
Question 5 (Page131, paragraph 97) Japan would like to know the relationship between the ePrivacy Directive and the existing Directive 
95/46/EC.  Does ePrivacy Directive specify the de tails and implementation of Directive 95/46/EC?  
Could the EU explain how it implements the regulatio ns against operators regarding the acquisition of 
so-called "cookies" in the Implementation of the re vised Framework-Article 5(3) of the ePrivacy 
Directive? 
http://circa.europa.eu/Public/irc/infso/co com1/library?l=/public_documents_2010/cocom10-
34_guidance/_EN_1.0_&a=d. When this regulation is also applied for accessing a website from the EU member countries to other 
countries, would it not be in consistent with the GATS obligations especially that relating to mode 1?  
 
Answer 
The ePrivacy Directive complements the general Da ta Protection Directive (1995/46/EC) in the area 
of electronic communications networks and services.   The ePrivacy Directive covers any data which 
travel over public networks in the EU, applying to  all matters which are not specifically covered by 
the Directive 95/46/EC.  Its aim is to ensure that  a high level of privacy is granted to all 
communications over public networks regardless of the technology. 
 Question 6 (Page131, paragraph 97) 
The Secretariat's report says that Additional measures are being put in place to reinforce the 
independence and powers of the national regulators w ho, if necessary, will be able to order functional 
separations of the networks and services branches of telecom operators in countries where significant 
market power (SMP) operators continue to own th e communication networks.  Could the EU explain 
the definition of SMP in the report?  Is SMP the same concept as " use of its position in the market" 
which is one of the requirements for being consider ed "major supplier" in the Reference paper of 
GATS? Japan would also like to know the actual situatio n if there are specific examples which the EU 
considers separating the networks and services of some carriers in the EU.  
 
Answer 
It should be noted that the 2002 EU regulatory framework for electronic communications and the legislative changes introduced by the 2009 "Telecom Re form" are consistent with the commitments of 
the EU within the WTO.  Recital 29 of the Fram ework Directive (2002/21/EC) specifically states that 
"The Community and the Member States have entered into commitments in rel ation to standards and 
the regulatory framework of telecommunicatio ns networks and services in the World Trade 
Organization." The common principles and a methodology within  the framework for analysing market and defining 
SMP are based on the EU competition law. Accordi ng to Article 14 of the Framework Directive "An 
undertaking shall be deemed to ha ve significant market power if, either individually or jointly with 
others, it enjoys a position equivalent to dominance, that is to say a position of economic strength 
affording it the power to behave to an appreciable ex tent independently of competitors customers and 
ultimately consumers".  This is the definition that the European Court of Justice case-law ascribes to 
the concept of dominant position in Article 82 of the Treaty.  More guidance is provided in the WT/TPR/M/248/Add.1 
Page 40  
 
 Commission guidelines on market analysis and assessment of significant power of 2002 (2002/C 
165/03): http://ec.europa.eu/information_society/poli cy/ecomm/library/recomm_guidelines/index_en.htm. 
Any case of a potential functional separation - as a last resort oft regulatory intervention - would be 
dealt by the relevant national regulatory authority  (NRA), while the European Commission would 
need to authorize functional separation arrangements before they could be implemented.  The Body of 
European Regulators for Electronic Communicatio ns (BEREC) has published guidance for NRAs on 
this matter in 2011 ("Report on guidance on functional separation"). See:  http://www.erg.eu.int/docum ents/berec_docs/index_en.htm#board 
Some form of separation has already taken place in  the UK and Italy in the previous years, while 
Ireland, Portugal, Poland and Sweden have studied the measure lately.  For example, in Sweden, the 
NRA has stated that it intends to see what effect  the new legislation transposing the revised EU 
regulatory framework will have on the market, while not excluding the possibility to consider 
functional separation as a last resort in the future.   More information on this matter can be found in 
the country reports on telecom regulatory developmen ts of the 2011 Digita l Agenda Scoreboard, 
available at:  
http://ec.europa.eu/information_society/dig ital-agenda/scoreboard/countries/index_en.htm. 
 Question 7 (Page131, paragraph 97) 
The Secretariat's report says that customers should be able to switch from one operator to another, 
while keeping their fixed or mobile number, in one  working day.  Does this also include switching 
operators from mobile to fixed phones or vice versa?  In this context, what does "in one working day" 
mean ?  Does it mean that consumers can use ne w telephone services after applying for switching 
from their previous operator to a new one within only one working day? Japan would like to know what measures have b een taken among EU operators to enable their 
customers to be able to switch operators in one working day (ex. number portability database solution 
or routing principles for number portability).  
 
Answer 
Under the EU rules, the requirements concerning nu mber portability do not appl y to situations when 
a consumer switches from mobile to fixed operators or vice versa. 
As the new EU rules are just being transposed to  the national laws, the exp erience is rather limited so 
far.  However, a report by the Body of Eur opean Regulators for Electronic Communications (BEREC)  
has published a report on "Best practices to facilit ate consumer switching" in 2010, which can be 
found at the following address:  http://www.erg.e u.int/documents/berec_docs /index_en.htm#board. 
 Question 8 (Page131, paragraph 97)  
The Secretariat's Report says that in future, consumer contracts with a maximum duration of 
12 months should be available.  Japan would lik e to know the background and the purpose of this 
measure.  
Answer 
The current 24-month contracts seem too long for consumers to be bound to  one service provider, 
why a 12-month contract period was propo sed and agreed in the new Directive. 
 Question 9 (Page132, paragraph 100)  
The Secretariat's Report says that the regulator y environment must simultaneously stimulate 
substantial private-sector investment in high-sp eed networks while fostering competition in the 
market for broadband services.  Japan would like to  know which concrete and effective policies to 
stimulate private-sector investment in high-speed networks are in place.  WT/TPR/M/248/Add.1 
Page 41 
 
 
  Answer 
It is recognized that in order to achieve the EU ta rgets on broadband and high-sp eed networks (set in 
the Digital Agenda for Europe in 2010), substantial investment is needed from a range of public and 
private actors.  To facilitate this process, the Commission adopted  a "Broadband Package" in September 2010 that 
includes:  (i) a Broadband Communication laying out a common framework for action and outlining 
proposals to Member States for achieving the targ ets;  (ii) the NGA Recommendation setting out 
regulatory guidance to promote legal certainty thereby encouraging private investment in NGA 
networks;  and (iii) a proposal for a multiannual Radio Spectrum Policy Progr amme to improve co-
ordination and mana gement of spectrum in the EU, thereby facilitating the growth of wireless 
broadband. 
 JAPAN II 
 
Report by the Secretariat 
 
II. TRADE POLICY REGIME  (5) 
INVESTMENT AGREEMENTS AND ARRANGEMENTS  
Question 10 (WT/TPR/S/248), paragraph 43, page 25 
According to the report, EU"s Member States are no longer competent to negotiate international 
agreements on FDI with third countries unless empower ed to do so by the EU .  In which cases are its 
Member States allowed to negotiate internationa l investment agreements with third countries? 
 
Answer 
The proposed future Regulation establishing trans itional arrangements for bilateral investment 
agreements between Member States and third countries  (mentioned in par. 45) contains the conditions 
and the procedure under which Member States would be empowered to negotiate new bilateral 
investment agreements or re-negotiate existing one s.  Since the proposed Regulation is still under 
discussion between relevant EU institutions, no furt her information is available at this stage.   
 Question 11 (WT/TPR/S/248), paragraph 43, page 25 
Since the Lisbon Treaty does not have a clear regulation on portfolio investment, the authority distribution is uncertain at the limit.  What kind of authority does the EU have for portfolio 
investment? 
 
Answer 
As explained in the report, the Lisbon Treaty integrates foreign direct investment into EU external 
trade policy, thus attributing to the EU exclusive competence in this area (see paragraphs 2-3 and 
43).  This is done by the new article 207 of th e TFEU. But EU competences go beyond the text of this 
article, since the articulation of investment policy s hould be consistent with the Treaty's Chapter on 
capital and payments (Articles 63-66 TFEU), which pr ovides that, in principle, all restrictions on 
payments and capital movements, including those invo lving direct as well as portfolio investments, 
both between Member States and between Member States and third countries, are prohibited.  That 
chapter does not expressly provide for the possib ility to conclude international agreements on 
investment, including portfolio investment.  However,  to the extent that international agreements on 
investment affect the scope of the common rules set by the Treaty's Chapter on capitals and payments, 
the European Union has competence to conclude agreements in this area. 
 WT/TPR/M/248/Add.1 
Page 42  
 
 Question 12 (WT/TPR/S/248), paragraph 43, page 25  
The Lisbon Treaty integrates foreign direct investment  into the EU external trade policy but does not 
define foreign direct investment or foreign investor .  What are the definitions of the term "foreign 
direct investment" and "foreign investor"? 
 
Answer 
The Lisbon Treaty does not provide for a definition of  those terms.  For more information about the 
general content of those terms under EU law, pl ease refer to the Commission's Communication quoted 
in para. 445. 
 
Question 13 (WT/TPR/S/248), paragraph 44, page 26 Please answer the following questions regarding th e "Roadmap on the Proposal for a Regulation of 
the European Parliament and the Council establis hing transitional arrangements for international 
investment agreements between Member States and third countries".  1. Please provide further information on the Roadmap. 
2. Please explain the current status of "Planni ng of further impact assessment work". 
 
Answer 
Paragraph 44, quoted in the question, does not refer to a "roadmap", but to Commission's proposal for a Regulation establishing transitional arrangement s for bilateral investment agreements between 
member States and third countries.  The Commission's proposal should be adopted by the Council and 
the European Parliament, through the ordinary legi slative procedure as set out in Articles 289 and 
294 TFEU and is currently on-going. No further information is available at this stage. 
 III. TRADE POLICIES AND PRACTICES BY MEASURE (1) 
MEASURES DIRECTLY AFFECTING IMPORTS  
(i) Custom procedures 
Question 14 (WT/TPR/S/248), paragraph 7, page 29 
Regarding the "24 hours rule" app lied for containerized maritime cargo, some Japanese companies are 
concerned about the rising costs caused by increased inventory and a lack of predictability in the 
system.  Could you explain about the status of implementation of this rule?  
 
Answer 
The rule has been implemented. 
 (iv) Tariffs 
Question 15 (WT/TPR/S/248), paragraph 32, page 34 
The WTO Secretariat's report states that the anal ysis for estimating A VEs "excludes 144 lines for 
which A VEs could not be estimated with no or very  low imports or no entry prices".  Could EU kindly 
provide a list of tariff lines for which those A VEs could not be estimated? 
 
Answer 
The calculations were undertaken by the WTO Secret ariat;  therefore the EU is not able to provide 
such details.  The EU would note that any calcula tion of AVEs has shortcomings as the result can be 
influenced by several elements, including:  the ba se period and partners chosen;  commodity prices; 
exchange rates;  shocks in specific markets;  treatm ent of mixed tariffs and tariff lines for which trade 
                                                      
5 "Towards a comprehensive EU international investment policy":  (available at 
http://trade.ec.europa.eu/doclib/docs/2011/may/tradoc_147884.pdf). WT/TPR/M/248/Add.1 
Page 43 
 
 
  data are not available;  and the extent to which preferential trade is included in the unit value 
calculation.  Question 16 (WT/TPR/S/248), Table III. 3, page 36 
The Secretariat mentions the EU"s transport equipmen t for MFN tariff.  Those duties are very high for 
developed countries, for example, automobiles at 10% and commercial vehicles at 22%.  
Considering that the EU"s automotive industry has high competitiveness in the global market and so 
has less reason to protect itself by high duties, wh at is the reason for maintaining such high tariff 
levels and what are the prospects for the EU to achieve free and open market access in this sector? 
 
Answer 
The EU does not consider unilaterally reducing its tariffs in the transport equipment sector, but is 
prepared to negotiate the level of all its tar iffs in multilateral and, in some cases, bilateral 
negotiations.  The EU's customs tariffs do not apply to imports from LDCs.  The tariffs mentioned by 
Japan are less than 0.5% of EU tariff lines.  
 
Question 17 (WT/TPR/S/248), paragraph 40, page 37  
A tariff suspension has the possibility of being elimin ated even in the applied period simply due to an 
objection submitted by one company, which co uld undermine the stability of the business 
environment.  How do you justify such a system? 
 
Answer 
The EU is under no obligation to suspend any tariffs.   All applied tariffs are strictly in line with our 
bindings in WTO.  The EU does not unilaterally abolis h tariffs, but is prepared to negotiate the level 
of all of its tariffs in multilatera l and in some cases bilateral negotia tions.  As an exception, duties can 
be suspended if there is no production in the EU and such suspensions are 
terminated once production resumes in the EU.   
(viii) Technical regulations and standards 
Question 18 (WT/TPR/S/248), paragraph 72, page 45 
The Detailed rules for the implementation of Co uncil Regulation (EC) No 834/2007 regarding the 
arrangements for importing organic products from a third country are laid down in Commission 
Regulation (EC) No 1235/2008.  Countries other than  the EU Member States may be recognized as 
having production standards and control arrangements which are equivalent to those provided for in 
the EU organic rules and regulations.  The list of  recognized countries is set out in Annex III of 
Regulation (EC) No 1235/2008.  
1. Article 7 (2) (b) of Regulation (EC) No 1235/2008 reads that the origin of the products shall 
be contained in Annex III to the Re gulation. Annex III limits the scope of the origin of organically-
produced ingredients in the final products of pr ocessed products, while specifying the scope of the 
origin of products with respect to live or unpro cessed products.  Could the EU explain why Annex III 
limits the scope of the origin of ingredients rather th an that of the origin of final products with respect 
to processed products? 
2. Some countries listed in Annex III are approve d of the use in processed products of 
organically-produced ingredients that are imported from other countries under certain 
conditions.   In this case, which production standards for organic certification are applied for the 
production of such imported ingredients:  the EU standards  or those of a recognized country  where 
the most recent production or preparation operatio n was carried out before the shipment of the 
processed products to the EU? WT/TPR/M/248/Add.1 
Page 44  
 
 3. Japan is of the view that, in case of Q2, the in tegrity of organically-produced ingredients that 
are exported to a recognized country is maintained  for whichever standards are applied. If the EU 
standards are applied, the production of organically-p roduced ingredients must be under the control of 
an EU control body or authority regardless of the physical location of production sites. If the 
standards of the recognized country are applied, the organic production system and control measures 
for certified operators, which are equivalent to th e system and control measures of the EU, are in 
place at all stages of organic production, preparati on and distribution irrespective of the physical 
location of operation sites.  Therefore, Japan woul d like to seek clarification of the reason why, with 
some exceptions, the EU restricts the scope of the country of origin of organically-produced 
ingredients in processed products to either an EU Member State or a recognized country.  Could the 
EU explain why organically-produced ingredients th at are produced in a country which is a non-EU 
Member State and not listed in Annex III to the Regula tion need to be treated differently in terms of 
organic integrity from those organically-produced ingr edients in an EU Member State or a recognized 
country? 
Answer 
1. Guidelines for the development of equiva lence agreements regarding food import and export 
inspection and certification systems are provided by Codex Alimentarius (CAC/GL 34). Section 4 (5) 
of these guidelines provides:  "As agreed by the parties, an equivalence agreement covering control and certification systems may relate to any aspect of food safety or other relevant requirement for 
food.  Such agreements may be limited to spec ific areas of trade or specific products". 
 
Annex III of Regulation (EC) No 1235/2008 refers to specific equivalence agreements between the EU 
and third countries.  For each case, the scope of  the equivalence recognition is precisely defined.  
With respect to organic processed products, which cont ain ingredients originating in third countries, 
the production of raw materials and/or some stag es of processing takes place under a control system 
which has not been assessed and recognized as equiva lent by the EU.  Therefore the scope of such 
agreements covers live or unprocessed products grown in the country recognized as equivalent and/or 
processed products containing ingredients, wh ich originate in the recognized country.  
 2. The scope of EU"s equivalence arrangement s includes organic processed products prepared 
with ingredients imported from third countries under certain conditions. Indeed, products produced 
with EU organic ingredients or with ingredients from third countries recognized as equivalent are 
included in some cases. One applies the producti on standards of the country where ingredients 
originate. Annex III stipulates the more specific cond itions for each country recognized as equivalent.   
 3. Under the EU equivalence arrangements, all c ontrols from the production of raw materials to 
the final stages of processing and labeling of the products are performed under a control system, 
which has been recognized as equivalent.  This is not the case with third c ountries falling outside EU 
equivalence arrangements.  
Question 19 (WT/TPR/S/248), paragraph 87, page 52  
The Secretariat's Report says that Third-party conformity assessment conducted by "notified bodies" 
is used for products deemed high-risk.  Could th e EU explain how it determines which products are 
deemed high-risk in radio and telecom equipment? Japan would like to know the precise criteria.  
Japan recognizes that there are many products found not  in line with the criteria by post-testing in the 
EU market even though the SDoC was adopted.  Jap an would like to know if the EU has taken any 
measures to improve this situation. Please explain the reason why CABs that are not established in the EU cannot qualify as NBs. 
 WT/TPR/M/248/Add.1 
Page 45 
 
 
  Answer 
Radio and telecom equipment is not deemed high-ri sk for safety purposes under EU legislation, hence 
no third-party conformity assessment applies in this respect.  Strengthening market surveillance and providing be tter tools for enforcement authorities are among 
the objectives of the upcoming revision of Dir ective 1999/5/EC on Radio and Telecommunications 
Terminal Equipment. For further details, please see at: http://ec. europa.eu/enterprise/sectors/rtte/public-
consultation/index_en.htm.  
In general terms, it is also expected that the implementation of Regulation (EC) No. 765/2008 setting 
out common principles for market surveillance w ill strengthen market surveillance throughout the 
EU.  See also the replies to Q 47 from Mexico, Q 64 from Argentina and Q 24 from the United States.  Regarding the reasons why conformity assessment bodies (CABs) that are not established in the EU 
cannot qualify as Notified Bodies (NBs), it should be recalled that NBs perform activities in the public 
interest and that their designation by a Member Stat e is a political decision backed, from a technical 
point of view, by accreditation or any other equiva lent means of assessing the technical competence, 
by which a Member State takes responsibility for the ac tivities of the NB as well as undertakes specific 
obligations towards the European Commission and the other Member States regarding the continued fulfilment by the NB of the conditions attached to it s designation.  This implies, inter alia, e.g. the 
ability for the Member State concern ed to impose penalties on the NB as  a legal entity and on its legal 
representatives in case of infringements, access at al l times to the premises of the NB to perform all 
necessary checks on its activities, the ability to take me asures for the processing of pending files were 
the NB to cease its activities for whatever reason, etc.   In order for the system to operate as intended, 
NBs must therefore be answerable by law to the competent notifying authorities and come within the 
jurisdiction of an EU Member State.  This is onl y legally possible if NBs are established as legal 
entities in the EU.   
Question 20 (WT/TPR/S/248), paragraph 97, page 54  
Although compliance with "harmonized European st andards" is voluntary, are they considered as de 
facto  mandatory standards because only products that conform to "harmonized European standards" 
benefit from the presumption of conformity with the requirements?   Answer 
Products which are in conformity with Europe an harmonized standards, whose references have been 
published in the Official Journal of the European Uni on, are presumed to be in conformity with the 
essential (e.g. health, safety, environmental) re quirements of the applicable EU New Approach 
legislation that are covered by those standards.  While harmonized standards provide useful guidance 
as to the current state-of-the-art, their applic ation is voluntary and manufacturers are free to 
demonstrate compliance with the legal requireme nts through alternative adequate technical means. 
 Question 21 (WT/TPR/S/248), paragraph 97, page 54 
According to the Secretariat's Report, European  Standards Organizations have accepted the WTO 
Code of Good Practice.  Could th e EU provide statistics on the percentages of IDT, MOD and NEQ of 
those EN standards (or other standards) which are based on international standards?  It would be 
appreciated if those statistics show the percenta ge of CEN and CENELEC standards respectively. 
 
Answer 
29% of all CEN standard collection of 14193 European standards is identical to international ones while for CENELEC the percentage increases to 68 % out of a collection of 6364 European standards.  
The large majority of European standards equivalent to international standards is identical to them 
(adopted with no modifications): for CEN, only 26 standards are modified ISO publications compared 
to 4125 identical ones, while for CENELEC 416 ar e modified IEC standards while 4317 are identical WT/TPR/M/248/Add.1 
Page 46  
 
 to the IEC ones. 
(data provided by CEN-CENELEC related to the first quarter 2011).  
 
(x) Sanitary and phytosanitary standards (SPS) 
Question 22 (WT/TPR/S/248), paragraph 103/107, page 56/57  
Do the EU and its Member States fully align th eir legislation and regulations with OIE/Codex 
recommendations, standards, and guidelines without any additional requirements?  Could you please 
specify any deviations from OIE/Codex recommenda tions, standards and guidelines, and the reasons 
for the deviations? 
 
Answer 
EU measures are where possible based on relevant  international standards. However, in some cases 
there are no such standards and the EU has therefore to rely on standards developed at the Community level.  These are no more trade restrictive than necessary and third countries should recall that they apply both to trade within the EU and to imports from third countries in a non-
discriminatory manner.  The EU fully supports th e activities of the international standard setting 
bodies, notably the OIE/CODEX/IPPC, in order to provide a comprehensive framework of standards 
at the multilateral level.  For a full study on the few EU SPS measures not in compliance with CODEX standards, please see the communication G/SPS/GEN/1044 (8 October 2010) "EU Notification Authority and Enquiry Point 
for the SPS Agreement:  Experience after the revi sion of the Transparency Guidelines of December 
2008: Workshop on the Transparency Provisions of the SPS Agreement - Geneva, 19 and 22 October 
2010 - Reflection Note", Annex II, page 7.  The EU is the only WTO member which has published such 
a complete review of its deviations of the international standards, given a full explanation of the scientific reasoning behind the decision. 
 
(3) 
MEASURES AFFECTING PRODUCTION AND TRADE  
(i) The Business framework and foreign investment regimes 
Question 23 (WT/TPR/S/248), paragraph 148, page 65  
According to the Secretariat's Report, Germany amended its Foreign Trade and Payments Act to 
broaden the scope of investment reviews.  Please e xplain the background of this broadenings to the 
scope of investment reviews. 
 
Answer  
The law amendment has the objective of investigating and prohibiting the acquisition of resident 
companies by non-EU acquirers, if this is indispens able in order to protect the public order or 
security of the Federal Republic of Germany.  The existing examination of certain foreign acquisitions 
of companies that manufacture or develop war weapons , certain defense equipment or cryptosystems, 
is thereby extended.   The investment regime remains open.  The amendment is solely intended to ensure that there is an 
instrument, in individual cases and according to the proportionality principle, which allows to 
investigate problematic investments with regards to the security of the Federal Republic of Germany 
(to be interpreted strictly like exceptions to EU Treaty freedoms).  
 WT/TPR/M/248/Add.1 
Page 47 
 
 
  (iv) Government Procurement 
Question 24 (WT/TPR/S/248), paragraph 190, page 78  
The EU applies but the EC public procurement di rectives to several sectors but not the GPA.  
1. Why doesn't the EU apply the international rule on government procurement, the GPA, to these sectors? 
2. The Directives are established in  form of a "directive" that requires domestic legislation, so it 
seems that the EU must ensure the uniform and prope r application of the Directives.  How can the EU 
ensure that?  Are there cases of "government procurement" in violation of the Directives? 
 
Answer   
1. The EU public procurement directives apply to  the water, energy, airports, ports, urban 
transport, railways and postal services sectors.  The coverage of the EU commitments under the GPA 
has been established following negotiations w ith all the other GPA members on the basis of 
reciprocity.  It can only be extended on that basis.   Currently, the EU opens procurement by entities 
operating in the fields of water, urban transport,  electricity, ports and ai rports to some GPA 
members. 
2. The EU treaty foresees that Member States legi slation transposing EU directives must comply 
with the latter. Businesses or citizens can cl aims damages for incorrect transposition in national 
tribunals and/or by lodging a complaint to the European Commission.  The European Commission, as 
the guardian of the Treaty, can sue EU Member States that fail to comply with EU directives. Cases of 
violation of the EU public procurement directives  are published in the website of the European 
Commission.  
Question 25 (WT/TPR/S/248), paragraph 190, page 78  
Article 40, Section 3.(c) of the EU Directive 2004/ 17/EC, regarding public utilities including water 
management, energy, transportation and postal servic es allows contracting entities to use a procedure 
without a prior call for competition as long as an open , restricted or negotiated procedures which are 
the general methods for procurements have b een used and certain conditions (when only one 
particular tenderer is capable of performing the contra ct for technical or artistic reasons) are satisfied.   
 1. What are the standards applied in determini ng "for technical or artistic reasons"?  Are the 
standards left at the discretion of Member States , or are there any standards specified by the EU 
elsewhere than in this Directive?  Have th ere been any standards formulated based on the 
accumulation of precedents? If such st andards exist, please indicate them. 
2. Please indicate the specific cas es where a contract is awarded without a prior call for such 
"technical or artistic reasons".  
 
Answer  
First of all, this provision has existed in subs tantially the same form since the first Public 
Procurement Directive 71/305/EEC in each and every one of the subsequent Directives.  According to a constant jurisprudence, based on a series of judgments concerning either the Utilities Directive (or 
its predecessors) or the Classic Directive (or its various predecessors), "it should, as a preliminary 
point, be noted that, as derogations from the rules relating to procedures for the award of public procurement contracts, the provisions of Article  20(2)(c) and (d) of Directive 93/38 must be 
interpreted strictly.  Also, the burden of proof lies on the party seeking to rely on them (see, to that 
effect, in the context of Directives 71/305 and 93/37, Case 199/85 Commission v Italy [1987] ECR 1039, paragraph 14;  Case C-57/94 Commission v Italy [1995] ECR I-1249, paragraph 23;  and Case C-385/02 Commission v Italy [2004] ECR I-8121, paragraph 19)." (point 33 of JUDGMENT OF THE COURT, 2 June 2005, Case C-394/02, Commission vs. Greece).  Second, as set out in point 
34 of the same judgment, the conditions for the app licability of what is now Art. 40(3)c) are quite 
strict:  "it follows from the case law that the applic ation of that provision is subject to two cumulative 
conditions, namely, first, that there are technica l reasons connected to the works which are the WT/TPR/M/248/Add.1 
Page 48  
 
 subject-matter of the contract and, second, that those technical reasons make it absolutely necessary 
to award that contract to a particular contractor (see, to that effect, in the context of Directives 
71/305 and 93/37, Case C-57/94 Commission v Italy, paragraph 24, and Case C-385/02 Commission v Italy, paragraphs 18, 20 and 21)."   
Furthermore, as shown by judgment of the C ourt, 3 May 1994, Case C-328/92, Commission vs. Spain, 
the verification of whether or not the conditions ar e met must be carried out on a specific case-by 
case basis and cannot be done in advance in a general  and abstract way (See point 17 of that judgment).  If Article 6(1)(b) is to apply, it is  not sufficient for the pharmaceutical products and 
specialties in question to be protected by exclusi ve rights; they must also be capable of being 
manufactured or delivered only by a particular supplier.  Since that re quirement is satisfied only with 
respect to those products and specialties for which there is no competition in the market, 
Article 6(1 )(b) cannot in any way justify genera l and indiscriminate recourse to the single-tender 
procedure for all supplies of all pharmaceutical products and specialties". 
It should finally be added that a rapid search of case law did not show any cases in which the 
conditions for legitimately recourse  to this exception were actually met. Also, there seem to be no 
cases at all concerning "artistic reasons", which ma y therefore be concluded not to pose any problem 
in practice. The following judgments of the Court (Case C-394/02, 2 June 2005- Case C-57/94, 18 May 1995) provide some examples of this particular situation. 
 
Question 26 (WT/TPR/S/248), paragraph 190, page 78  
Annexes II to X of EU directive 2004/17/EC give  lists of contracting entities to which the EU 
directive applies for procurement projects in each  public sector (i.e. the water supply, energy, 
transportation, postal service) of each member stat e.  However, with sectors like power supply and 
water management, some Member States have no contr acting entities list.  What is the reason for that? 
In the sectors of such countries, is there no ec onomic operator providing the services concerned? Or 
although operators exit, are there no descriptions of them in the list for some reason?  What are the 
standards in determining whether to list them in the annex?  Are the standards left at the discretion of 
Member States, or are there any standards specified by the EU elsewhere other than in this Directive?  
Or, are there any standards which were formulated  based on an accumulation of precedents?  If such 
standards exist, please indicate them.  (In case the standards are included in other EU legislation, 
please specify the relevant provisions). 
 
Answer  
The annexes I to X of Directive 2004/17/EC as modified by the annexes of Decision 2008/963 are indicative and non-exhaustive.  The scope of Directiv e 2004/17/EC is determined by the provisions in 
Title I Chapter II (Articles 2 to 9).  
The lists of contracting entities in the electrici ty and water sectors contained in the annexes to 
Decision 2008/963 modifying the annexes to Directive 2004/17/EC have entries for all the EU Member States.  Some Member States have opted to pr ovide lists of operators, whereas other Member 
States have opted to provide the reference to the national legisla tion to which these contracting  
entities are subject.  The latter a re mostly Member States whose c ontracting entities in these sectors 
are local and would require a voluminous listing.   
 
Question 27 (WT/TPR/S/248), paragraph 190, page 78  
Some of the Greek public entities in the public ut ilities sectors are to be "privatized" in the near 
future. 
 
1. Which entities will be subject to "privatization"?  Are they all listed in the Annexes of the EU 
Directive 2004/17/EC? WT/TPR/M/248/Add.1 
Page 49 
 
 
  2. Will those entities to be "privatized" continue  to be subject to the Directive 2004/17/EC?  
Will they continue to be listed in the annexes of the same Directive? 
3. Are those entities regarded as "privatized" the moment that they cease to be public entities in 
Greece?  If not, are there any other criteria for priv atization?  If such criteria exist, please indicate 
them. 
 
Answer  
1. The decision to privatize state-owned companies is a decision that belongs to each Member 
State. As indicated under question 26, the scope of  directive 2004/17/EC is determined on the basis of 
definitions.  The indicative lists provided in th e annexes include examples of entities falling within 
these definitions . 
2. The fact that a contracting entity has been "privatized" does not suffice for it to be withdrawn 
from the scope of the directive 2004/17/EC.  Rather, it should be established that the entity in question 
operates in a fully competitive sect or (both de jure and de facto). 
3. As the privatization does not suffice, entiti es should fulfil the criteria mentioned above to be 
excluded from the scope of the directive.  
Question 28 (WT/TPR/S/248), paragraph 190, page 78  
Article 48, Section 2. of the EU Di rective 2004/18/EC stipulates that "(a)  (i) a list of the works carried 
out over the past five years, accompanied by certificates of the satisfactory execution of the most important works", including information on the site of the works, may be required as evidence of the 
economic operators" technical abilities, if the contrac ting authority so specifies in the notice or in the 
invitation to tender.   Does this mean that the economic operators may be required to have been operational in a specific 
municipality or region for a certain period of time in order to take part in the contract?  Please explain 
how the EU ensures that foreig n enterprises, especially non-EU enterprises, are not treated in a 
discriminatory manner. 
 
Answer  
No economic operator in the EU may be required "t o have been operational in a specific municipality 
or region for a certain period of time in order to take part in the contract".  Such requirement would go against the principle of non-discrimination provided for under the EU Treaty and the EU public 
procurement directives.  As such, it could be c hallenged before national courts.  The European 
Commission could also launch an infri ngement procedure on these grounds.   
As a Party to the GP A, the EU ensures that s uppliers originating from other GP A members benefit 
from the principles of national treatment and non-discrimination, within the area of the covered procurement.  
 
Question 29 (WT/TPR/S/248) paragraph 190, page 78)  
Article 30 of EU directive 2004/17/EC is about "Pro cedure for establishing whether a given activity is 
directly exposed to competition".  This article provi des that "Contracts intended to enable an activity 
related to so called "the utility sector " to be carried out shall not be subject to this directive if, in the 
member state in which it is performed, the activity is directly exposed to competition on markets to 
which access is not restricted". 
1. What is in fact the criterion for deciding that  in particular case contracts are not subject to the 
Directive?   2. What are the standards for determining whether contracts shall or shall not be subject to this 
Directive?  Are the standards left at the discretion of Member States, or are there standards specified 
by the EU elsewhere other than in this Directive?  Or, have there been any formulated standards based 
on an accumulation of precedents? If such standa rds exist, please indicate them.  (In case the 
standards are included in other EU legislati ons, please specify the relevant provisions). 
 WT/TPR/M/248/Add.1 
Page 50  
 
 Answer  
1. The possibility of excluding contracting entiti es (whether they are public authorities, public 
undertakings or private undertakings) from the sc ope of the Directive when they operate in a sector 
that has been "liberalized" - in th e sense that the free access to that activity results in real competition  
has been introduced in Article 30 of Directive 2004/ 17/EC.  This possibility exists for all of the 
covered sectors, both where "libera lization" is undertaken at Community level and at a purely 
national level.  2. The decision on the applicability of the exclus ion will be taken by a procedure by the 
Commission, on the basis of a detailed request to be filled in by the Member State, with a strong role 
for independent national authorities (competition au thorities or regulatory authorities), so that a 
uniform application of Community law and legal certainty is safeguarded.  
 Question 30 (WT/TPR/S/248), paragraph 191, page 78 
1. Please explain the provisions of Directive 2004/18/EC with respect to "accelerated 
procedures" on the grounds of urgency. 
2. Please explain why the use of "accelerated procedure" was justified in December 2008. 
3. What are the standards for determining "the  grounds of urgency"?  Are such standards 
determined at the discretion of Member States, or are there any standards specified by the EU 
elsewhere other than in this Directive?  Or, have  there been any standards formulated based on an 
accumulation of precedents? If such standards ex ist, please indicate them. Please also provide 
information regarding the number of procurement contracts as well as the categories of goods and 
services covered under this procedure after its estab lishment.4. Please explain how this procedure is 
consistent with the provisions of the GPA. 5. Please explain about the operation of the m onitoring mechanism set up by the Commission 
for this procedure and provide specific cases in whic h the application of this procedure was found to 
be illegal, unlawful or in appropriate based on this monitoring mechanism? 
 Answer  
1. The Article 38 (8) of the public procurem ent Directive 2004/18/EC allows recourse to 
accelerated procedures were justified on the grounds of  urgency.  This notion should be interpreted 
strictly as it provides for an exception to the nor mal, applicable proce dures with the corresponding 
deadlines. 
2. In 2008, the Commission recognized that the excep tional nature of the economic situation can 
justify the use of the accelerated procedure on grounds of urgency. 
3. In cases of use of accelerat ed procedures on the grounds of urgency, contracting authorities 
are required to indicate in the contract notice publ ished in the Official Journal the reasons for the 
recourse to this procedure.  
Data on the use of this particular pr ocedure are currently not available. 
4. Article XI 3 c) of the GPA foresees the possi bility to reduce applicable deadlines in case of 
urgency. 5. The EU has set up a monitoring mechanism of  the use of the accelerated procedure justified 
on grounds of urgency via the Advisory Committee for Public Contracts (composed of Member 
States).  The Member States provide statistical inform ation on the contracts for which this procedure 
has been used.  The information includes an overvie w of the contract values, types of contracts 
(works, services, supplies), and busi ness sectors.  The Member States that wish to keep using the 
temporary anti-crisis measures can do so until the end of 2011. 
 Question 31 (WT/TPR/S/248), paragraph 192, page 78  
The Secretariat's report states that the percentage (of public procurement published in Official Journal 
procurement above the stipulated thresholds) varies among EU Member States.  The authorities 
attribute these variations to the different structur es of the public sector (and its spending power) in the 
respective member State".   WT/TPR/M/248/Add.1 
Page 51 
 
 
  1. What does "the different stru ctures of the public sector" mean?  
2. Does the EU view that the variations of the above-mentioned percen tage among EU Member 
States result in the variations of the interpretati on and the application of the EU public procurement 
directives among EU member State?  If so, how the EU analyzes such co-relationship? 
 Answer  
1. As explained in the report, some Member States may have a centralized purchasing policy 
whereas others may have a more decen tralized purchasing policy. 
2. The EU does not share this view.  As indica ted in point 1, this situation is due to the 
centralised or decentralised nat ure of the purchasing policy. 
 
Question 32 (WT/TPR/S/248), paragraph 193, page 80  
According to the Secretariat's report, in 2007 (the la test year for which data are available), contracts 
for a total value of €12 billion (3.3% of the total above-threshold procurement, and 3.9% of the total 
procurement open to GPA partners) were awar ded to suppliers originating from non-EU GPA 
signatories. 
 1. Does the EU believe that the above figur es sufficiently indicat e that the government 
procurement market of the EU is open to non-EU Member States that are GPA Signatories, if so why?  
If not, does the EU plan to undertake concrete and systemic measures to remedy this situation? 
2. When the EU calculates such figures, what ar e the criteria on whether the suppliers/providers 
come from EU members or non-EU? 
3. Regarding the last sentence, please provide  information on the product/service categories 
covered by the contracts mentioned? 
 
Answer  
1. The above figures relate to effective cross- border operations. They indicate that the EU 
public procurement market is as largely open comp ared with commercial procurement market since 
as the volume of public cross-border procurem ent roughly corresponds to the percentage of trade 
between the EU and GPA Parties to its own GDP.  
2. The EU calculates these figures on the basis of the location of the headquarters of the 
company to whom the contract has been awarded.  
3. Please find the data requested for 2007.  
Table - Main type of goods and services sold by foreign firms from GPA countries 
Type of purchase (CPV) Value (EUR) Contracts/lots 
72 - IT services 3.531.421.064 362 
33 - Medical and precision equip. 1.361.825.706 7747 
30 - IT equipment 1.332.601.240 863 
24 - Chemical/Pharma 907.721.445 2559 
35 -Transport equipment 621.661.970 34 
64 - Telecom services 590.962.188 9 
45 - Construction works 509.274.329 179 
66 - Financial services 325.479.100 332 
74 - Business services 264.092.332 410 
32 - Telecom equipment 195.189.282 47 
29 - Machinery 192.125.197 174 
 
Question 33 (WT/TPR/S/248), paragraph 195, page 80  
The Secretariat's report states that "Although the thr esholds are the same, the coverage of the GPA is 
different from that of the Directives.  The GPA covers entities, goods, and services, including WT/TPR/M/248/Add.1 
Page 52  
 
 construction services, as specified in EU's Appendix I.  In 2007, out of a total of € 367.2 billion above-
threshold procurement in the EU, € 309.6 billion (84%) was open to GPA partners.   
 1. What are the grounds for the difference betw een the coverage of the GPA and that of the 
Directives? 
2. If such a difference in coverage is present in  specific sectors, what sectors are not open to 
GPA partners?  
Answer  
1. As explained in our answer to question 24, the EU's commitments under the GPA result from 
negotiations with other GPA members, based on reciprocity.  
2. Procurement in the field of gas and railwa ys are not opened by the EU under its current GPA 
market access commitments.  However, these two secto rs are included in the EU 's offers in bilateral 
and GPA negotiations.  
 
Question 34 (WT/TPR/S/248), paragraph 196, page 81  
The Secretariat's report states that "Article XX of the GPA requires each party to provide a mechanism 
by which a supplier may challenge alleged breaches of the GPA before an independent and impartial 
review body.  These procedures must meet the mini mum standards of Article XX regarding the nature 
of the review body, the procedures for th e hearing, and the remedies available." 
What are the minimum standards under Article XX of the GPA as understood by the EU?  Does the 
EU believe that the EU's Remedies Directiv e (2007/66/EC) satisfies these minimum standards? 
 
Answer  
The EU has set up a comprehensive and efficient remedies regime with directives 89/665/EEC and 
92/13 EEC, which were both substantially amen ded by Directive 2007/66/EC.  The Remedies 
Directive sets out the remedies available to a ggrieved bidders if they consider that contracting 
authorities have entered into contract s in breach of the EU Procurement Directives.  These Directives 
constitute a common set of rules for all Member States.  The EU remedies regime goes beyond the requirements of Article XX of the GP A.  Under the remedies 
directives, the review must be available to "any p erson having or having had an interest in obtaining a 
particular public supply or public works contract and who has been or ri sks being harmed by an 
alleged infringement". 
In addition, any action/inaction taken by a contracti ng authority/entity that is not in conformity with 
the EU Public Procurement Directives can be cons idered "unlawful" and be subject of a review 
procedure under the Remedies Directives (Art. 1 of both Remedies Directives).  Therefore, review procedures are not restricted to a pre-defined list of possible unlawful actions.  
The Remedies Directives leave it to the Memb er States to decide if the review bodies are 
administrative or judicial.  If the first instance review body is administrative, it needs to be an 
"independent body".  The exact requirements for this are not spelled out specifically in the Remedies Directives, as the concept is generally understood  in the constitutional traditions of the Member 
States.  This concept includes fo r instance the following aspects: 
- The review body has to be completely free in its deliberations and decision-taking powers, 
without any external person/institution giving it orders or exercising influence over it or its 
members.  The members of the review body have to have a status that guarantees their 
independence (similarly to the statues of judges). 
- In organizational terms, the review body mu st be independent from the contracting 
authority/entity, i.e. the review process is not performed by the same contracting 
authority/entity whose decision is challenged, or by a body supervising it.  (e.g. if the 
contracting authority is a government agency supervised by a ministry, the review of the agency's procurement process is not carried out by the agency or by the ministry.) WT/TPR/M/248/Add.1 
Page 53 
 
 
  - Also, the review body should be independent from  the government, thus e.g. its president is 
appointed by the parliament, not by the government and the review body reports about its annual activity to parliament. 
The Remedies Directives specify that if the first  instance review body is administrative, aggrieved 
bidders must have the possibility to appeal against its decisions either by way of judicial review, or 
review by another independent body (Article 2(9) of both Remedies Directives).  Article 2(9) of both 
Remedies Directives foresee that the appeal body should fulfill the following requirements:  "the members of such an independent body shall be ap pointed and leave office under the same conditions 
as members of the judiciary as regards the authority responsible for their appointment, their period of office, and their removal.  At least the President of this independent body shall have the same legal 
and professional qualifications as members of the j udiciary.  The independent body shall take its 
decisions following a procedure in which both sides are heard, and these decisions shall, by means determined by each Member State, be legally binding."  Under the existing Remedies Directives, actions can be brought either before the contract following 
the procurement procedure is signed - pre-contractual remedies - or after the signature of the contract 
- post-contractual remedies - mainly in the form  of applications for damages, although in some 
Member States it is possible to have an unlawful deci sion set aside after contract conclusion.  In 
practice, the bidders struggled to make use of th e pre-contractual remedies as the contracting 
authorities proceeded to signature of the contract fairly quickly after the decision to award.  Therefore, Directive 2007/66/EC has introduced a mandatory "standstill period" between the 
communication of the award decision to bidders and the conclusion of the contract.  This provision 
provides aggrieved bidders with an opportunity to seek quick and effective relief, including interim 
relief, at the pre-contractual stage where violations can still be corrected. 
 
Question 35 (WT/TPR/S/248), paragraph 196, page 81  
1. Could the EU provide a list of the review bodies which are required to be established by the 
GPA?  2. What is the scope of coverage of the re view bodies of each Member State?  Does each of 
them receive and review complaints filed agains t all the entities from Annex I to Annex III in its 
national territory? 3. Could the EU provide statistics on the performance of the review bodies, such as the status of 
receipts and reviews of complaints in each member state? 
 
Answer  
1. Please check the website of the Public Procurement Network (http://www.publicprocurementnetwork.org) for national  contact points that will be able to give you 
the precise and up-to-date information.  
In addition, each contract award notice contai ns the reference to the appropriate body where a 
remedies procedure can be lodged.  
Please see below for the list of review bodies in the EU.  Please note that it is an indicative and non-
exhaustive list of review bodies that has been gathe red by the EU Public Procurement Network. 
 
Austria 
Contracting authorities/entities at federal level:  Bundesvergabeamt 
Contracting authorities/entities at regional/muni cipal level:  Unabhängige Verwaltungssenate 
(for Salzburg and Vienna:  Vergabekontrollsenate)  
Belgium 
Conseil d"État/Raad van Staat 
Ordinary courts WT/TPR/M/248/Add.1 
Page 54  
 
 Bulgaria 
Commission for the Protection of Competition (First instance) 
Supreme Administrative Court (Appeal)  Cyprus 
Tender Review Authority Supreme Court of Cyprus  The Czech Republic 
Regional Court in Brno 
Supreme Administrative Court of the Czech Republic 
 Denmark 
Complain Board for Public Procurement Decisions of the Complain Board can be challenged in ordinary courts 
 
Estonia 
Public Procurement Appeal Committee  
Finland 
Market Court 
Decisions of the Market Court are appealable to the Supreme Administrative Court 
 France 
Depending on the nature of the contract, either the judicial or administrative judges are responsible for enforcing remedies.  The latter decisions may be  appealed in front of respectively the Conseil d' 
État or the Cour de Cassation. 
The Cour de discipline budgétaire et financière may be called on to impose sanctions on public 
officials responsible for irregularities in the awarding of contracts.  Germany 
First instance: 
Public procurement tribunals at federal level : Bundeskartellamt 
Public procurement tribunal at Bundesländer level:  Public procurement tribunal of the Land in question Appellate instance: Court of Appeal – Oberlandsgericht 
 
Greece 
Administrative tribunals  Hungary 
Public Procurement Arbitration Board (first instance of review) 
Decisions of the Arbitration Board can be brought to court for judicial review.  
The Metropolitan Court of Budapest may change the decision of the Arbitration Board. The Supreme Court reviews decisions of the court of second instance.  Ireland 
Legal actions are brought in the High Court. Italy 
Regional administrative courts (first instance) State Council (appeal)  WT/TPR/M/248/Add.1 
Page 55 
 
 
  Latvia 
Public Monitoring Bureau 
Decisions of the Public Monitoring Bureau can be appealed in the Administrative Court (judicial body)  
Lithuania 
Regional courts (first instance 
Decisions of the regional courts can be appe aled to the Court of Appeal of Lithuania 
 Luxembourg 
Tribunal administrative (first instance) Cour administrative (second instance)  Malta 
Public Contracts Review Board (first instance) 
Court of Appeal (second instance) 
 
The Netherlands 
Court of law (civil court)  
Court of Appeal Supreme Court 
 
Poland 
National Appeals Chamber (NAC) – non judicial review body (appeals) Regional Courts – judicial review bodies (complaints)  
Portugal 
Administrative tribunals 
 Romania 
Administrative-jurisdictional body: The National Council for Solving Complaints Administrative branch of justice: the contentious-administrative sections 
 The courts at the level of each county – Tribunal County 
 The Regional Appeal Courts – appeal 
 Special procedure regarding the award of c ontracts in the infrastructure field – the 
Bucharest Appeal Court 
 The Slovak Republic 
Office for Public procurement The Office for Public procurement decision regarding a protest proceeding can be scrutinized by a 
Court.  Only the Court is in competence to nullify a contract. 
 Slovenia 
National Review Commission  
Spain 
Central government level:  Central administrative tribunal for contractual challenges 
Autonomic communities level:  Central administr ative tribunal for contractual challenges or 
dedicated review bodies upon decision by communities" assemblies  Sweden 
Administrative courts WT/TPR/M/248/Add.1 
Page 56  
 
  First instance: forvaltningsrätt 
 Second instance: kammarrätt 
 Last instance: Regeringsrätten 
General courts: 
 First instance: tingsrätt 
 Second instance: hövrätt 
 Last instance: Högsta domstolen 
 The United Kingdom 
Legal actions are brought to the: 
 High Court in England, Wales and Northern Ireland 
 Sheriff Court in Scotland 
Appeals: 
 Civil Division of the Court of Appeal 
 Supreme Court of the United Kingdom (last instance) 
2. Review bodies set up in a Member States are competent for complaints lodged by aggrieved 
bidders who participated or wanted to participate to  a procurement procedu re by national procuring 
entities subject to the EU  procurement directives. 
3. Such data are curren tly not available. 
 
Question 36 (WT/TPR/S/248), paragraph 197, page 81  
1. For each Member State, please provide a list of the review bodies that are established and in 
which a review is initiated in accordance with the Re medies Directive and a list of national courts in 
which a judicial review is initiated in  accordance with the Remedies Directive. 
2. Article 2b of the Remedies Directive lists certain situations by which Member States may 
provide for derogation from th e application of Standstill. 
(1) Please provide a list of the Member States that provided for derogation from Standstill in their respective legislation w ith regards to the remedies procedures and 
information with respect to each of Items (a) to (c) of Article 2b as applied; (2) With respect to providing for derogation from Standstill as applying Items (a) to (c), 
are the standards left at the discretion of Memb er States, or are there any standards specified 
by the EU elsewhere other than in this Direc tive?  Alternatively, are there any standards 
formulated based on an accumulation of preceden ts?  If such standards exist, please indicate 
them; (3) Article 2b, Item (b) provides for a situat ion in which the tenderer who is awarded the 
contract is the sole tenderer.  However, the Remedies Directive does not require that a person 
applying for a review has tendered in terms of th e eligibility of an applicant for a review.  In 
the case that the Standstill is not applied on th e ground that the tenderer who is awarded the 
contract is the sole tenderer, will not a person w ho did not tender be deprived of the right to a 
review, which is fundamentally granted under the remedies measures of this Directive? 
(4) Article 2b, Item (c) provides for cases for a "framework agreement" and "dynamic 
purchasing system".  Please provide the reas ons as to why derogation from Standstill may be 
made available for these procurement methods. 
3 Concerning the period following the enactment of the Remedies Directive, for each Member 
State, please provide: 
(1) the number of reviews initiated in  accordance with this Directive; 
(2) the number of reviews admitted to be revi ewed by relevant review bodies or national 
courts, and; (3) the number of reviews decided in favor of review applicants.  Also, please indicate 
information concerning the details for specifi c cases with regard to such reviews.  WT/TPR/M/248/Add.1 
Page 57 
 
 
  Furthermore, please indicate, if any, the standards formulated based on an accumulation of 
precedents for determining admissibility/inad missibility of reviews initiated as well as 
decisions favoring/disfavoring the applicant. 
4 Article 2d, Section 3 of the Remedies Directive provides that, if a review body finds "overriding reasons relating to general interests", Member States may provide that such a review body 
may not consider an illegal direct awarded contract  ineffective. With regards to determining the 
existence of such "reasons", are the standards left at  the discretion of Member States, or are there any 
standards specified by the EU elsewhere other than in this Directive?  Alternatively, are there any 
standards formulated based on an accumulation of pr ecedents?  If such standards exist, please indicate 
them. 
5 Article 4, Section 2 of the Remedies Directive provides that Member States shall 
communicate to the Commission on an annual basis all decisions, together with the reasons thereof, 
taken by their review bodies in accordance with Article 2d(3).  Please provide reports received by the EU from Member States for the period following the enactment of this Directive. 6 According to Article 2d, Section 4 of the Remedi es Directive, Member States shall provide to 
avoid the applicability of a provision that nullifies a contract that is in violation of the procurement 
directives by conducting a voluntary ex ante  notice aimed at ensuring transparency based on Article 
3a. 
(1) What are the elements of formalities and c ontents of such a voluntary ex ante notice?  
Are the standards left at the discretion of Memb er States, or are there any standards specified 
by the EU elsewhere other than in this Direc tive?  Alternatively, are there any standards 
formulated based on an accumulation of preceden ts?  If such standards exist, please indicate 
them.  (2) Please provide information concerning the number and the details of specific cases, for the period following the enactment of the Re medies Directive, whereby a contract that is 
in violation of the procurement directives has avoided nullification as the contracting 
authority has conducted such a voluntary ex ante  notice. 
(3) In the case that the contracting authority has conducted such voluntary ex ante  notice, 
and as a result, a contract that is in violation of the procurement directives has avoided to be nullified, if a person wishes to file a review for such a decision made by the contracting authority, what are the review pro cedures such a person can undertake?   
 
Answer   
1. Please see the response to question 35. 
2. Directive 2007/66/EC has just been transposed by Member States.  The Commission is currently checking the implementi ng measures notified by Member St ates.  Therefore, the EU is 
currently not in a position to provide answers to th e questions posed by Japan on this directive. 
 
Question 37 (WT/TPR/S/248), paragraph 198, page 81  
Among government procurements in the railway sector  to which the EU public procurement directive 
apply, please provide the statistics, for each EU Member State, of the last available five fiscal years on 
the number and the amount of contracts that have been awarded to suppliers that originate from non-EU GPA Parties.  Also, please indicate the standard s used for determining which particular supplier 
has been specified as a "non-EU supplier" with regards to such statistics.   
 
Answer  
Collection of data on the nationality of GP A compani es who were awarded contracts started as from 
2007.  In 2007, 948 million EUR of contracts have been awarded to companies from other GP A 
Parties by railway operators.  Data collection w ill continue for further years.  Commission services 
have been informed that a 5 billion EUR contract was to be awarded to a company from a non-EU 
GP A country.  
 WT/TPR/M/248/Add.1 
Page 58  
 
 Question 38 (WT/TPR/S/248), paragraph 199, page 81 
1. What are the definitions of "non-EU bidders ", "suppliers from third countries" and "foreign 
firms" as determined by the EU?  Please confirm whether these definitions are the same for each of 
the Member States. 2. Is it correct to understand that a particular entity  that is incorporated in  an EU Member State, 
irrespective of its origin (the country in which its  principal office is located, the nationality of the 
CEO or other shareholders, among other factors), are treated as a corporation of such a Member State (thus, an EU corporation, thereby having the right s to non-discriminatory treatments as regards to 
other corporations originating from such a Member  State)?  If this understanding is incorrect, please 
provide justifications, together with articles of the laws and their relevant provisions.  If answers to 
this understanding vary from one Member State to another, please provide specific answers for each 
Member State.  3. Please clarify the meaning of the second part of  the last sentence, namely, the part where the 
general principles of EU law (transparency, equal treatment, non-discrimination) must be respected.  
Answer  
1. A "non EU bidder" is a non-national of, or not established in none of the Member States of 
the European Union, and is not engaged in s ubstantive business operations in the territory of a 
Member State.  "Supplier from third country" is a non EU bidder for procurement of goods. Both concepts are understood in the same manner by all Member States. 
The notion of "foreign firms" has no legal standing in the EU.  
2. This is correct. 
3. The general principles of transparency, equal treatment and non-discrimination are enshrined in the EU Treaty.  They sha ll apply to all procurement in the EU. 
 
Question 39 (WT/TPR/S/248), paragraph 203, page82-83  
What are the standards in determining "social an d environmental consideration" as reflected in 
"technical specifications, selection and award criteria and contract performances clauses"?  Are the standards left at the discretion of Member States,  or are there any standards specified by the EU 
elsewhere other than in this Directive?  Alternativ ely, are there any standards formulated based on an 
accumulation of precedents?  If such standards ex ist, please indicate them.  Furthermore, please 
provide specific cases in which "social and environm ental consideration" is reflected in "technical 
specifications, selection and award criteria and contract performances clauses". 
 
Answer  
The EU has a longstanding experience with Green Public Procurement (GPP).  The GPP is a voluntary policy, the Member States and contrac ting authorities can determine to which extent they 
implement it.  The basic concept of GPP relies on having clear, verifiable, justifiable and ambitious 
environmental criteria for products and servic es, based on a life-cycle approach and scientific 
evidence base.  To this end the EU has published a "B uying Green" Guide, which is a step by step by 
step guide for contracting authorities wishing to "g reen" their procurement.  Additionally, the EU 
provides contracting authorities with a "Toolkit" on GPP that contains the permitted criteria that they 
can use while procuring in a specific sector:  fo r example: procurements of copying and graphic 
paper, IT equipment, catering services and others.  The toolkit is accessible electronically on the 
following website: http://ec.europa.eu/environment/gpp/gpp_criteria_en.htm  As regards the domain of socially responsible proc urement, the definition of this domain and criteria 
that are permitted under the EU procurement ru les are to be found in the Interpretative 
Communication on Integrating Social Considerations in Public Procurement.  Additional examples 
and suggestions are detailed in the "Buying Soci al" guide.  Both documents are available under: 
http://ec.europa.eu/internal marke t/publicprocurement/index_en.htm.  
 WT/TPR/M/248/Add.1 
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  Question 40 (WT/TPR/S/248) paragraph 204/205/206, page 83  
According to the Secretariat's report, "[t]he proc urement Directives stipulate detailed rules/methods 
for estimating the value of contracts, and an artif icial split-up into smaller lots to circumvent the 
Directive represents an infringement.  Nonetheless, the contracting authorities may award contracts in 
lots with a view to accommodating social consider ations, or promoting par ticipation of SMEs in 
procurement, provided that the procurement requireme nt is not subdivided to avoid the application of 
the EU Directives.  And, according to the Europ ean Commission online information quoted by Note 
232 and the following paragraphs 205 and 206, some contacting authorities of the EU Member States 
have strongly recommended splitting a call for tender in to lots, especially to support their SMEs.   
Please explain how the EU ensures consistency of this aspect with the GPA provision on the division 
of procurements (i.e. all the original contracts of  divided procurements are below-threshold).  What 
concrete measures does the EU take in order to en sure that procurements which are originally over-
threshold are not subdivided with the aim of avoidi ng the application of the EU Directives and the 
GPA?  
 
Answer  
The EU contracting authorities are allowed to award c ontracts in lots, as long as this does not lead to 
avoiding the threshold of the EU Directives and the GP A.  In the contract documents, the contracting authority may ask or may be required by a Member St ate to ask the bidder to indicate in his bid any 
share of the contract he may intend to sub-contract .  This obviously benefits  to the participation of 
SMEs in the EU tender procedures.  The EU Direc tives do not contain any provision that would allow 
splitting of contracts in lots with the view  to accommodating social considerations.  
The EU is equipped with a specific tool (an electr onic platform in-built to OJ/TED) that allows for 
monitoring of the split ups.  The EU Treaty prov ides then for a procedur e to investigate potential 
infringements of the procurement rules and remedy them.  Additionally, the EU's harmonized system 
for bid challenges allows to the bidders to claim their rights.  
 
Question 41 (WT/TPR/S/248), paragraph 205, page 83  
What is the definition of SMEs in the EU, and is this definition the same as applied in each Member 
State? 
 
Answer  
On 6 may 2003, the European Commission adopted Recommendation 2003/361 regarding SME definition.  Enterprises qualify as micro, small and medium-siz ed enterprises (SMEs) if they fulfill the criteria 
laid down in the Recommendation which are summarized in  the table below.  In addition to the staff 
headcount ceiling, an enterprise qualifies as an SME if it meets either the turnover ceiling or the 
balance sheet ceiling, but not necessarily both. 
 
Enterprise category Head count  Turnover Balance sheet total 
Medium-sized < 250 ≤ € 50 million ≤ € 43 million 
Small < 50 ≤ € 10 million ≤ € 10 million 
Micro < 10 ≤ € 2 million ≤ € 2 million 
 
This Recommendation con cerns all Community policies applied within the European Economic Area 
in favour of SMEs (Structural Funds, Framewo rk Programme for Research and Development) as well 
as State Aid, where SMEs can benefit from exempti on provisions and higher ai d ceilings (see General 
Block Exemption Regulation in the field of Stat e Aid).  The Recommendation is addressed to the 
Member States, the European Investment Bank (E IB) and the European Investment Fund (EIF). 
Further information can be found:  http://ec.eu ropa.eu/enterprise/policies/sme/facts-figures-analysis 
/sme-definition/index_en.htm. 
 WT/TPR/M/248/Add.1 
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 Question 42 (WT/TPR/S/248) paragraph 205/206, page 83  
According to paragraph 205, the 2006 Code on Pub lic Procurement in France stipulates that bidders 
may be asked to indicate in their offers whether they  intend to subcontract to third parties, especially 
SMEs (Article 48).  And according to paragraph 206,  many states in Germany have special laws and 
regulations to support SMEs, allowing contracting au thorities to include a clause requiring contractors 
to subcontract to SMEs in contract conditions. 
1. What are the purposes of these provisions?  Do es this mean that these provisions are aimed at 
favoring SMEs located in these countries or within the EU? 2. Please explain how the EU ensures consiste ncy between these provisions and provisions 
under the GPA and the EU Procurement Directives (fo r example, all the original contracts subjected 
to procurement are below-threshold) and how the EU  ensures that foreign enterprises, especially non-
EU enterprises, are not treated in a discriminatory manner. 
Answer  
1. The EU has a long standing policy of promotion of SMEs in all areas, including procurement. 
A large variety of tools have been put into pla ce at the EU level.  Also, some Member States have 
developed specific measures aiming at helping SMEs.  Best practices were collected by the 
Commission in its "European Code of best practices facilitating access by SMEs to public 
procurement contracts "(published in 2008).  2. All these initiatives fully comply with th e principles of non-di scrimination and equal 
treatment, which are enshrined in the EU Trea ty.  Therefore, they are in line with the EU's 
procurement directives and the EU's  international obligations.  
 
Question 43 (WT/TPR/S/248) paragraph 207, page 83  
The Secretariat's report states that, "some have expressed the view that the EU procurement Directives 
lack flexibility, and tend to constrain Member St ates' ability to achieve their social/environmental 
objectives through public procurement". 
Please share with other members of the WTO the ma in difficulties that the EU faced during this 
process of introducing common criteria among differen t Member States that have already defined 
national criteria.  
Answer  
The EU procurement policy seeks to include so cial and environmental considerations while 
preserving the essential principles of trans parency, equal treatment and non-discrimination.  
The Commission has published various guides to he lp public authorities to buy goods and services in 
a socially responsible or "green" way in line with EU  rules.  These documents explain the wide range 
of possibilities offered by the existing EU public pr ocurement rules to take social and environmental 
aspects on board in the various stages of the procu rement process.  Those clarifications allow public 
purchasers to integrate with great er confidence social and environm ental considerations in public 
procurement, while ensuring equal access to a ll European interested bidders and guaranteeing an 
efficient use of public money. 
 
Question 44 (WT/TPR/S/248, paragraph 208, page 84)  
According to the Secretariat's report, the GPP is a voluntary policy. 1. Does it mean that the extent of the GPP criteria to be applied differs from one Member State 
to another or from one contract to another? 2. If it is the case, by what means can the supp liers know the criteria applied in the tendering 
procedures?  Are such criteria duly specified in tender documentation?   Answer  
Please see our answer provided under question 39. 
 WT/TPR/M/248/Add.1 
Page 61 
 
 
  IV DEVELOPMENTS IN SELECTED SECTORS 
(1) A GRICULTURE  
(i) Agriculture in the European Union 
Question 45 (WT/TPR/S/248), paragraph 20, page 10  
1. When the Commission makes public intervention for a product beyond the pre-set limit, is the intervention made at the pre-set intervention pri ce?  Moreover, could the EU explain the specific 
conditions to be met to judge that  "market situation and, in partic ular, the development of market 
prices, requires public intervention beyond the pre-set limits." 2. Could the EU provide the intervention cost s for butter and skimmed milk powder in 2009, 
and the intervention costs and quantities for each  cereal in marketing years 2008/09 and 2009/2010. 
 Answer  
1) Beyond the pre-set limits referred to in Ar ticle 13 of Council Regulation (EC) No. 1234/2007 
as amended by Regulation 72/2009 on 19 January 2009, public int ervention buying-in is managed by 
a tendering procedure.  Within this procedure, th e public intervention buying-in price is established in 
accordance with Article 18 of Council Regulatio n (EC) No. 1234/2007 as amended by Regulation 
72/2009 on 19 January 2009. Any decision to open public interventio n buying-in beyond the pre-set 
limits is taken on a case-by-case analysis of the market situation and the development of market 
prices.  2) The expenditure for intervention storage fo r butter and skimmed milk powder in budget year 
2009 was €69.2 million.  Please consult Annex 31 in the EAGF report:  http://ec.europa.e 
u/agriculture/fin /finrep09/annexes_en.pdf.  
 
The public intervention costs for cereals in budget year 2009 and budget year 2010. 
Cereal 2009 € mio 2010 € mio 
Common wheat 1 4 
Barley 15 85 
Maize 8 7 
TOTAL 24 96 
 
The public intervention quantities (in 000 tons) for cereals in marketing years 2008/09 and 2009/10. 
Cereal 2008/2009 2009/2010 
Common wheat 82 269 
Durum wheat 0 0 
Barley 930 5,606 
Rye 0 0 
Maize 556 0 
Sorghum 0 0 
TOTAL 1,568 5,875 
 
(ii) Agriculture policies 
Question 46 (WT/TPR/S/248), paragraph 36, page 110  
The WTO Secretariat's report states that 20 tariff q uotas "had no imports at all."  Would the EU kindly 
explain why each of those tariff quotas had no imports? 
 
Answer  
The reasons for a low fill rate for certain quotas ar e linked to market conditions, such as sufficient 
supply of the products at competitive prices on the internal market.   WT/TPR/M/248/Add.1 
Page 62  
 
 (2) 
TRADE IN SERVICES  
(i) Introduction 
Question 47 (WT/TPR/S/248), paragraph 50, page 116  
Can the Services Directive make the EU Member States obey its orders as a legal obligation?  What 
happens to a EU Member State that maintains exis ting legislation which is inconsistent with the 
decision/ of the Services Directive? 
 
Answer  
As any piece of EU Legislation, the Services direct ive is mandatory for all Member States. In case an 
EU Member State maintains an existing legislation which is considered by the Commission to be 
incompatible with the Services Directive, the Commission can start an infringement procedure in  
order to obtain more information and, if need be, to have a Member State modify its legislation.   In case a Member State and the EU Commission still disagree on the compatibility of a national legislation with the Services directive (the same app ly to any other EU legal instrument), then the 
Commission can call for the European Union Court of Justice to judge the compatibility of such a 
legislation.  Judgments of the EU Court of Jus tice are of course mandatory and can include financial 
sanctions for Member States whose legislation would be judged as non-conform with EU legislation. 
 Question 48 (WT/TPR/S/248), paragraph 50, page 116  
Regarding the screening of the member States" authorization schemes made obligatory by The 
Services Directive, please answer  the three questions below: 
1. Please explain the procedures of the screening process in detail.  2. Are the results of the scree ning process publicly available? 
3. If any schemes are found unjustifiable as a result of the screening, does the Services Directive 
oblige member States to modify them? Are there any penalties imposed on them? 
 Answer  
During the implementation phase of the Services directive (2007-2009), Member States had (among other obligations), the obligation to screen their legislations regulating services activities.  Thus, for 
each identified authorization scheme a Member State had, first of all, to verify whether the scheme 
was non-discriminatory, (i.e. whether it does not provide,  directly or indirectly, for different treatment 
of domestic providers and of providers from other Me mber States).  Secondly, each Member State had 
to assess whether the authorization scheme pursued a public interest objective (one of the so-called 
overriding reasons relating to the public interest ) and whether the authorization scheme was indeed 
suitable for securing the attainment of that objec tive.  Finally, Member States had to assess whether 
the objective pursued could not be achieved by other less restrictive means.  If a legislation was found 
not conform to these principl es, it had to be modified. 
By the end of 2009, Member States had to send national reports compiling all the different 
screening/justification procedures done for their relev ant service legislation.  These reports were not 
public but shared between Member States and the Commission.  During year 2010, a mutual evaluation process was organized between Member  States and the Commission to discuss these 
reports and identify best practices and/or problems still needing to be addressed.  As a consequence, 
new initiatives have been taken at the beginning of 20 11 to deepen the Inter nal Market for Services. 
At the end of the process, in case an EU Member State maintains an existing legislation which is 
considered by the Commission to be incompatible  with the Services Directive, the Commission can 
start an infringement procedure (see answer to Question 47 for more details). 
 
Question 49 (WT/TPR/S/248), paragraph 51, page 116  
Why does the Services Directive exclude several important sectors such as financial services, 
electronic communication services and networks, transport services, services of temporary work agencies, healthcare and pharmaceutical services,  audiovisual and broadcasting services, gambling WT/TPR/M/248/Add.1 
Page 63 
 
 
  activities, certain social services, private secu rity services and services by notaries and bailiffs 
appointed by an official act of government?  While key service sectors such as financial, telecommunications and transport services were not, acco rding to the Secretariat's report, included as 
they are regulated under other rules, how and under what kind of rules have other excluded services 
sectors been regulated?   Answer  
The Services Directive applies to services, defined  as self-employed economic activities normally 
provided for remuneration.  The Services Direc tive applies to all activities and sectors that are not  
expressly excluded from its scope of application. 
 
On the contrary, the Services Directive does no t apply to:  financial services;  electronic 
communications services and networks;  services in the field of transpor t;  services of temporary work 
agencies; healthcare services provid ed by health professionals to patients;  audiovisual services and 
radio broadcasting;  gambling activities;  social services relating to social housing, childcare and 
support of families and persons permane ntly or temporarily in need wh ich are provided by the State, 
by providers mandated by the State or by charities re cognized as such by the State;  private security 
services; services provided by notaries and bailiffs,  who are appointed by an official act of 
government.   The reasons behind these exclusions are diverse.  For the most part, certain sectors have been 
excluded from the scope of the Service Directive b ecause they were/are already covered by specific 
pieces of EU legislation regulating these service activ ities.  This is notably the case for:  financial 
services;  electronic communications services and netw orks; services in the field of transport; 
services of temporary work agencies; healthcare services; audiovisual services and radio broadcasting. 
Other sectors have been excluded in the course of th e negotiations by the C ouncil and EU Parliament 
due to their specificities and political sensitivity.  But these exclusions do not of course make these 
sectors and services immune to the application of Ar ticles 49 (the freedom of establishment) and 56 
(the freedom to provide services) of the TFEU.  Thus , as long as they are services for the purposes of 
Article 57 TFEU, they may be subject to the rules on  freedom of establishment and freedom to provide 
services under Articles 49 and 56 TFEU, as the case may be.  
As a consequence, all services activities are covered by the Treaty and its general principles (such as 
transparency, proportionality) and the very large majority  is also covered by specific EU instruments 
(Services directive, Professional Qualifications di rective or other sector-specific instruments). 
 
(iii) Transport 
Question 50 (WT/TPR/S/248) paragraph 83, page 127  
According to the Secretariat's Report, "the Co mmission has taken initiatives focusing on opening the 
rail transport market to competition within and between EU Member States".  What concrete 
measures have been taken for the initiatives?  Is privatization being considered as a part of the 
initiatives?  If so, how has privatization of the railw ays been so far promoted and what would be the 
future privatization plan?  If a privatization plan  is not being considered, please explain the reason. 
 Answer  
The EU has adopted legislation about the non-discriminatory access of railway undertakings to rail infrastructure, safety of rail transport and the inte roperability of railways.  For instance, railway 
undertakings may not award infrastructure capacity or set the price of using the infrastructure. 
Furthermore, Member State rail regulatory bodies ha ve the right to take decisions if these rules are 
not abided by.  Additional law concerns the award of contracts by authorities to compensate railway undertakings for 
public service obligations in the fie ld of rail passenger transport.  WT/TPR/M/248/Add.1 
Page 64  
 
 Privatization is not considered part of the initia tives, because the Treaty on the Functioning of the 
European Union leaves decisions on State ownership of  companies to the discretion of Member States.  
 Appendix tables  
Question 51 (WT/TPR/S/248), tables AII.1, page 145 1. The ITA established in 1996 has been promo ting developments in information technology, 
and thus contributing to industrial and social developments, by encouraging IT industries to 
sophisticate products covered by the ITA or add f unctions to such products.  Most ITA members 
impose no tariffs on such products, which Japan fi nds appropriate in light of the objectives and 
purpose of the ITA.  In this regard, Japan is con cerned that the EU does impose tariffs on imports of 
such sophisticated products or those with add itional functions by classifying them as non-ITA 
products under the EU's customs law.  
2. Such EU's unilateral reclassification of ITA products into non-ITA products is the restoration 
of trade barriers on ITA products, which the IT A members once determined to eliminate by 
establishing ITA and, as a result, leads an impedime nt in information technology development which 
is inconsistent with pa ragraph 1 of ITA.  To avoid losing the substance of ITA, each WTO member 
including the EU should be encouraged to maintain the ITA status on IT products. 
From the above-mentioned point of view, Jap an would like to ask the following questions; 
1. The WTO Panel Report on EC-IT products (D S375, 376 and 377), adopted on September 
2010 found not only FPDs (Flat Panel Displays) th at are solely or principally used with ADP 
(Automatic data processing) machines, but also FPDs designed for use with the products falling under 
ITA are covered by the EU's duty-free concession in its  Schedule.  This ruling  on the scope of the 
duty-free concession is fully responsive to the rea lity that monitors used with ADP machines and 
those used for audio-visuals or TVs are more and mo re integrated to each other in the market, since 
the products nowadays are highly efficient and have multi-functions reflecting technological 
innovations. Considering the fact that EU provides duty-free treatment to monitors that are solely or 
principally used with ADP machines, whereas it im poses duties of 14% on most of the other monitors, 
and the panel Report on EC-IT products over such measures of the EU, Japan is concerned that 
distinguishing significantly between monitors that ar e solely or principally used with ADP machines 
and other monitors in their tariff treatment will di stort the competitiveness of the products in addition 
to being inconsistent with Agreem ents so we would like to ask the EU's views and response on this 
issue.  
2. To facilitate trade in IT products more, it is  important that new products which integrate the 
IT and current technology are treated as duty-free.  To achieve this goal, re viewing and expanding the 
ITA coverage is one of the most effective ways an d Japan would like to ask the EU's plans for this 
issue. 
Answer  
1. The European Union recalls that all the meas ures concerning flat panel displays that were 
examined by the panel were repealed in 2009 by me ans of Commission Regulation (EC) 1179/2009 of 
26 November 2009 (OJEU L 317/1 of 3.12.2009) and the deletion of Explanatory Notes for CN codes 8528 41 00, 8528 49 10, 8528 49 35 to 8528 49 99, 8528 51 00 to 8528 59 90, 8528 51 00 and 8528 59 10 to 8528 59 90 (2009/C 268/05, published on the OJEU C 268/19 of 10.11.2009).  Therefore, no 
further action is required to en sure compliance with the recommenda tions and rulings of the DSB. 
The European Union intends to ensu re that tariff treatment accorded to  FPDs in the EU is consistent 
with the EU commitments pursuant to the ITA, as interpreted by the recommendations and rulings of 
the DSB. 
2. The European Union made a proposal for an ITA-review in October 2008.  The proposal 
consists of four elements: WT/TPR/M/248/Add.1 
Page 65 
 
 
   Revision of the product coverage 
 Introducing NTB-disciplines 
 Introduce an updating mechanism  
 Expanding Membership 
 
Despite this and additional calls for start of ne gotiations in the ITA committee by the European 
Union, several key participants of the ITA have so far expressed a reluctance to commence with 
negotiations. 
The European Union remains however ready to e ngage in negotiations if other ITA participants 
should express a willingness to do so in the ITA committee.  Report by European Union 
 
2. KEY DEVELOPMENTS IN THE EU 
2.3 The Development and Implementation of the EU's Investment Policy  Question 52 (WT/TPR/G/248), paragraph 37-43, page 10/11  
With respect to the establishment of the EU's exclusive competence on FDI, who will be responsible 
for any dispute settlement pro cedures raised by investors? 
Please explain based on possible cases arising from di fferent levels of measures, such as against 
measures by Member States or against EU Directives. 
 
Answer  
This is a matter which will be established in the agreement concerned. The precise approach is 
currently under discussion in the EU.  
 3. KEY DEVELOPMENTS IN THE EU"S TRADE POLICY 3.4 Sectoral Policies  Services 
 
Question 53 (WT/TPR/G/248, paragraph 88, page 19)  
Since a directive for Intra-corpor ate Transfers was proposed on 13 July 2010, and we would like to 
know what progress in the discussions of that Directive have been made. 
 
Answer  
The adopted proposal by the European Commission on Intra-Corporate Transferees is currently in the 
ordinary legislative procedure and is therefore being discussed in the Council and the European Parliament.  It is not possible to further specify the timeframe for the nego tiations of the proposal. 
 
Question 54 (WT/TPR/G/248), paragraph 88, page 19 
It is reported that Japanese people who work for a Japanese company in Greece have to undergo a 
physical checkup before leaving from Japan and afte r arriving in Greece.  Is there any reason why 
non-EU nationals including Japanese must undergo a check-up so immediately after the last check-
up? 
 
Answer  
It is recalled that GATS covers the temporary mo vement of service suppliers (Mode 4), but does not 
apply to VISA procedures or any other immigration issues.  Moreover, immigration matters fall within the competence of Member States that regulate th e sector concerned fully in line with their 
international commitments.  Therefore, any allege d problems should be clar ified on a bilateral basis 
with the competent authority in  the Member State concerned.  WT/TPR/M/248/Add.1 
Page 66  
 
 Question 55 (WT/TPR/G/248) paragraph 88, page 19  
Before workers for a Japanese company enter Sp ain or Lithuania, these countries require these 
workers to obtain a VISA and a Work Permit.  Howe ver, it is reported that it takes a long time to get 
them and the documents required ar e different depending on the officials responsible for them in the 
Embassy.  Japan would like to have it confirmed that  the issuing process is identical for all workers? 
 Answer  
It is recalled that GATS covers the temporary mo vement of service suppliers (Mode 4), but does not 
apply to VISA procedures or any other immigration issues.  Moreover, immigration matters fall within the competence of Member States that regulate th e sector concerned fully in line with their 
international commitments.  Therefore, any allege d problems should be clar ified on a bilateral basis 
with the competent authority in  the Member State concerned.  
 It is also not clear from the question what specific pr oblems existed in the area of Visa. It is noted in 
this respect that Regulation 810/2009 of th e European Parliament and the Council of 13.7.2009 
establishing a Community Code on Visas ("Visa  Code") harmonizes the rules and procedures for 
issuing short stay visas and also provides for the possibility of obtaining multiple entry visas with a 
long validity among others for business persons.  The Code is applied in 22 Member States and 
3 associated States for the time being and it foresee s one uniform format and  a specific timeline to 
issue those short stay visas.  
 
BRAZIL I 
 Question 1 
On page 7, paragraph 3, of docum ent WT/TPR/S/246 it is stated that "the Commission considers that 
the new "comitology" rules increase transparency and give it greater political responsibility".  Could 
the EU further elaborate on the modifications being made and how they should affect the 
Commission's responsibilities?  
Answer 
The new comitology rules (Regulation (EU) No 182/2011 of the European Parliament and the 
Council laying down the rules and general principl es concerning mechanisms for control by Member 
States of the Commission's exercise of impl ementing powers) entered into force on 1st March 2011. 
The mechanism of control foreseen by the Regula tion is based on "comitology" – i.e. committees 
composed by representatives of Member States to  which the Commission submits draft implementing 
measures.  All comitology procedures are conducte d in full transparency:  The Commission keeps a 
public register of committee proceedings.  
 
The new comitology rules will also apply to implem enting measures in the area of trade defence. 
Therefore, currently, all basic acts on trade defence are being formally modified in order to refer to 
the new Regulation.  Until then, trade defence meas ures will still be subject to special procedures and 
adopted by the Council.  By submitting them to  comitology, the new regulation increases the 
transparency and effectiveness of policy implementation in  the area of trade policy:  In the future, 
qualified majority will be required to block an anti- dumping measure, as against a simple majority 
today.   The new procedures also give more flexibility to  the European Commission and greater political 
responsibility: In the absence of a qualified majority  against or in favour of a Commission draft 
implementing measure, the Commission has the choice between adopting the measure and reviewing 
it (the only exception, where the Commission need s a positive opinion of the committee to adopt the 
act, relates to definitive multilateral trade safeguard  measures).  Furthermore, provisional anti-
dumping or countervailing measur es will be adopted by the European Commission through the WT/TPR/M/248/Add.1 
Page 67 
 
 
  urgency procedure without previous consultation of the committee and after information of the 
Member States.  These measures will stay in force until the definitive measures are adopted. 
 BRAZIL II 
 
II. TRADE POLICY REGIME 
(3) PARTICIPATION IN THE WO RLD TRADE ORGANIZATION  
Question 1 
Paragraph 21 – "Furthermore, the negotiations to c onsolidate the EU's services commitments pursuant 
to Article XXI of the GATS following the accession of Bulgaria and Romania have not yet been 
concluded, nor has the certified EU-25 schedule entere d into force since it has not been ratified by all 
member States"  Could the EU elaborate on the obstacles to the finalization of the ratification process of the certified EU-25 schedule and provide an indication of when the process may be concluded?  Answer 
The EU-25 certified consolidated schedule includes a clause which indicates that the schedule will 
enter in force when the EU will fina lize its internal approval procedu res.  The EU internal ratification 
process has been the subject of internal EU discu ssions on the division of competences between the 
EU and the Member States.  In addition, certain c onstitutional issues arose in one Member State. 
These events have somewhat de layed the ratification process.  
 As of 1 July 2011, 17 Member States out of 25 have finalised the ratification procedure, while 8 
ratification procedures are on-going.  The EU is det ermined to complete this process as quickly as 
possible but cannot provide an indication of a precise date for conclusion.  
 
II. TRADE POLICY REGIME (3) 
PARTICIPATION IN THE WO RLD TRADE ORGANIZATION  
Question 2 
Paragraph 22 - "Neither the EU nor its member St ates has notified "any new, or any changes to 
existing laws, regulations or administrative guide lines which significantly affect trade in services" 
under Article III:3 of the GATS since 1999.  Accord ing to the Commission, the scope of measures 
that would have to be notified unde r Article III:3 appears to be extremely broad, and in the absence of 
reliable and up-to-date statistics on trade in servic es, it is unclear which standards should apply to 
determine when a measure significantly affects trade in services".  
- Notwithstanding the EU's views that the scope of measures to be notified under Article III:3 is 
extremely broad, couldn't the EU take into cons ideration notifications by other WTO Members as a 
source of inspiration for its own notifications?   - Taking into consideration that the EU adopted m easures in response to the recent world financial 
crisis, wouldn't it be appropriate to notify such measures as they fall within the scope of financial 
services? 
 
Answer 
It is firstly noted that the WTO report (Table II.1) clearly demonstrates that the EU is fully committed 
to its transparency obligations existing in all areas of the WTO. The EU firmly believes that 
transparency is a core principle un derpinning the multilateral trading system, and is also important 
for trade in services.  Article III:3 GATS contains  an obligation to notify laws, regulations or 
administrative guidelines that "significantly" af fect trade in services covered by a specific WT/TPR/M/248/Add.1 
Page 68  
 
 commitment.  The fundamental issue that could not yet be clarified in the framework of the WTO is 
when a measure at hand has a "significant" eff ect on trade in services and so far, there exist no 
mutual, clear understanding amongst members in this  regard.  The EU is and has been open to 
discuss any possible solutions to this question in  the Committee on Trade in Services and thereby to 
seek inspiration from other Members' notifications.  It is however pointed out that from the mere 
notification of a measure, it is not clear on which basis a member concerned considered a measure to 
significantly affect its trade in services.  In the absence of reliable and up-to-date statistics on trade in 
services, the standards to apply are extremely difficult to define, but the EU remains committed to 
arrive at a mutual, clear understanding of when a notification should be supplied.    
II. TRADE POLICY REGIME 
(5) 
INVESTMENT AGREEMENTS AND ARRANGEMENTS  
Question3  
Do the transitional arrangements for bilateral i nvestment agreements between member States and 
third countries allow for comp ensations to the latter?  
 
Answer 
As explained in the report, the draft Regulation establishing transitional arrangements for bilateral 
investment agreements between Member States and th ird countries is designed to address an internal 
EU issue – the transfer of competence between the EU and its Member States.  Therefore, the topic of 
the relation to the third countries is not expressly addressed in the text.  The impact on an eventual 
issue of compensation for third states cannot be addressed without further explanation with regards 
to the type of compensations that the question refers to and of particular situations that are envisaged.  
 (1) 
MEASURES DIRECTLY AFFECTING IMPORTS  
Customs procedures 
Question 4 
Paragraph 7 (page 29) of the report by the Secret ariat indicates that "from 2011, carriers must lodge 
an electronic Entry Summary Declaration (ENS) with th e "customs office of first entry" into the EU". 
This requirement, however, does not apply "for impor ts covered by a security agreement between the 
EU and another country."  Could the EU provide information on whether it in tends to sign this kind of agreement with non-
European countries? 
 
Answer 
Due to the special geographical situation of Swit zerland, Norway and Andorra in the midst of the 
European Union, their special relations with the EU  as well as their high volume of trade with the 
EU, agreements have been adopted with those th ree countries which wave the obligation for traders 
to provide customs with advance electronic inform ation for security purposes in the bilateral trade 
between CH, NO, AND and the EU.  Meanwhile, in trade with third countries, Switzerland, Norway 
and Andorra will implement customs security measu res equivalent to those applicable in the EU 
(advance security data, risk management and AEO security).  The EU does not intend to replicate these agreements with any other third countries. 
 WT/TPR/M/248/Add.1 
Page 69 
 
 
  III. TRADE POLICIES AND PRACTICES BY MEASURE 
(1) MEASURES DIRECTLY AFFECTING IMPORTS  
(viii) Technical regulations and standards 
 
Question 5 
In paragraph 83 (page 51) of the report by the Secret ariat, a reference is made to concerns about EU 
draft regulations being notified at a stage wh en deliberations among EU member States have 
progressed too far to allow for the meaningful consideration of tradi ng partners" views.  
 
Could the EU provide data on the number of draft regul ations that are modified after being notified to 
the WTO, in response to WTO Members" comments on them? 
 
Answer 
The EU always submits its notifications when the technical regulation or conformity assessment 
procedure is still at a draft stage.  No notified text  has been adopted before the end of the comment 
period given to WTO Members, which is usually 60  to 90 days.  Legislative discussions with EU 
Member States take place either after or in parallel with the notification.  Comments from WTO Members submitted in the comment period under th e TBT notification procedure are always carefully 
analyzed during the legislative procedure and taken in to account before the adoption of the text.  A 
number of comments have led to modifications or cl arifications of drafts or of the implementation 
guidelines (such as the EU legislation on wines, the revision of the Explanatory Note accompanying 
the Commission Directive amending, for the purpose of  its adaptation to technical progress, for the 
31st time, Council Directive 67/548/EEC on the appr oximation of the laws, regulations and 
administrative provisions relating to the cl assification, packaging and labelling of dangerous 
substances, or the guidelines for the application of the REACH legislation), but the EU does not 
possess any statistics in this respect.  
 
Question 6 
Paragraph 84 (page 51) of the report by the Secretaria t states that "proposed technical regulations and 
conformity assessment procedures may be subject to impact assessment by the Commission."  
 
Could the EU clarify whether the regulation on ma rketing standards for poultry meat notified to the 
TBT Committee under G/TBT/N/EEC/267 was subject to impact assessment? If affirmative, could the 
EU share the findings of such assessment?  
 
Answer 
The regulation on marketing standards for poultry meat notified to the TBT Committee under 
G/TBT/N/EEC/267 was not subject to an impact assessment.   In this regard it s hould be noted that the 
regulation is nothing more than an extrapolation of existing rules in order to adapt them to new market developments.  
 
Question 7 
As pointed out in paragraph 97 (page 54) of the report by the Secretariat, "harmonized European 
standards" play a central role in the EU new re gulatory approach, since only products that comply 
with them benefit from the presumption of c onformity with relevant requirements.  
 Could the EU indicate which procedures are in place to ensure that "harmonized European standards" 
are developed in a manner that is transparent and that allows contribution from other WTO Members? 
 
Answer 
All European standards, harmonized or not, are d eveloped accordingly to the WTO TBT Code of 
Good Practice principles of openness, transparency, non-discrimination, etc.  Moreover the European WT/TPR/M/248/Add.1 
Page 70  
 
 standardization work programme is open and freely accessible on the CEN, CENELEC and ETSI 
websites.  As European standardisation is based on the natio nal delegation principles (like ISO and IEC), the 
WTO members' stakeholders who ha ve a representative office in an EU Member State can participate 
to the full standardization process through the national standards body in that country. 
 
The WTO members' stakeholders can also give comme nts, from wherever in the world, on draft 
European standards during the public enquiry that the national standards bodies organize.  The most 
advanced ones even have dedicated websites where th e draft standards are accessible for free.  All 
comments will be taken into due consideration, bu t it is up to the Technical Committee to decide 
which comments to take on board due to their technical content.   Last but not least, traceability of comments on European and national level has to be ensured.  
 
III. TRADE POLICIES AND PRACTICES BY MEASURE 
(1) 
MEASURES DIRECTLY AFFECTING IMPORTS  
(ix) Sanitary and phytosanitary standards (SPS)  Question 8 
The definition for "fresh poultry meat" in Counc il Regulation (EC) No 104 7/2009 of 19 October 
2009, which amends Regulation (EC) No 1234/ 2007 establishing a common organization of 
agricultural markets as regards the marketing standards for poultry meat, is more stringent than the 
definitions of fresh meat contained in internationa l standards such as the OIE's "Terrestrial Animal 
Health Code", which establishes that "fresh meat means meat that has not been subjected to any 
treatment irreversibly modifying its organoleptic a nd physicochemical characteristics.  This includes 
frozen meat, chilled meat, minced meat and mechan ically recovered meat".  Furthermore, the 
proposed definition is even stricter than that cont ained in the EC"s own regulation on hygiene rules - 
Regulation 853/2004 - (mentioned in Document WT /TPR/S/248, page 56, paragraph 102), which 
establishes that "fresh meat me ans meat that has not undergone any preserving process other than 
chilling, freezing or quick-freezing, including meat that is vacuum-wrapped or wrapped in a controlled atmosphere".  
What is the rationale behind the proposed definition for "fresh poultry meat"?  What is the scientific 
basis for EC's deviating from both relevant inte rnational standards and its own rules on hygiene?  
 
Answer 
EU legislation contains different definitions of "f resh meat" depending on the purpose for which the 
definition is laid down e.g. hygiene production of meat, marketing of fresh poultry meat within the EU 
or protection of animal health.  
Definition of "fresh meat" laid down in Regulation (EC) No 853/2004 has the aim to ensure hygienic 
and safe production of all meat.  As requiremen ts and conditions for hygienic production are the 
same, chilled, frozen and quick-frozen  meat is covered.  This definitio n is in line with definition of 
"fresh meat" of Codex Alimentarius6. 
Definition of "fresh poultry meat" laid down in Re gulation (EC) No 1234/2007 is applicable since 
1990. Last amendment Council Regulation (EC) No  1047/2009 did not substantially change this 
definition.  The existing rules which had already been in force since 1991 prevented thawed poultry 
meat to be sold as fresh.  These rules are in lin e with EU policy on food quality and information to 
consumers.  
                                                      
6 Code of hygienic practice for meat, CAC/RCP 58 - 2005. WT/TPR/M/248/Add.1 
Page 71 
 
 
  In addition to that, definition of "fresh meat" c ontained in "Terrestrial Animal Health Code"7 is, in 
line with the purpose for which it was developed, used  in the EU legislation concerning animal health 
measures.  
These definitions do not contradict each other but work together in order to protect public health, 
animal health and interests of consumers. It should be emphasized that as regards public and animal 
health aspects, EU does not deviate from de finitions in relevant international standards.  
 Question 9 
According to Document WT/TPR/S/248, page 56, pa ragraph 105, "[t]he Gene ral Food Law set out the 
general principles governing food and feed at EU  and national levels. Measures adopted under the 
Law must be based on risk analysis "except where this is not appropriate to the circumstances or the 
nature of the measure".  Moreover, on page 57, pa ragraph 107, "regarding animal health and food of 
animal origin, the Commission indicates that EU  legislation is largely based on OIE/Codex 
recommendations, standards, and guidelines." In the light of data provided by Members, including scientific studies presented by the EU, JECFA 
(Joint FAO/WHO Expert Committee on Food Additives - the Codex scientific advisory body) 
concluded, in May 2010, that the recommende d Maximum Residue Limits for the substance 
ractopamine are compatible with the acceptable and safe daily intake of food and no health concerns 
were identified.   Brazil wishes to enquiry why the EU does not accept the position of JECFA concerning ractopamine.  
 Answer 
The EU is taking into account the advice of the European Food Safety Authority (EFSA) on its 
Scientific Opinion of the Panel Scientific Op inion of the Panel on Additives and Products or 
Substances used in Animal Feed (FEEDAP) on a request from the European Commission on the 
safety evaluation of ractopamine.  The full text of the scientific opinion is available at 
http://www.efsa.europa.eu/en/efsajournal/pub/1041.htm. The assessment carried out by EFSA is limited to a review of the JECFA risk assessment leading to 
the proposed maximum residue levels (MRL), and oth er relevant scientific information, in order to 
establish if there were any scientific grounds for concern , in particular any information which would 
call into question the scientific grounds for the JEC FA evaluation and/or on the safety of food and 
food products from animals treated with ractopamine. 
 Question 10 
Still on page 56, paragraph 105,  measures adopted  under the General Food Law must be based on 
risk analysis "except where this is not appropriate to the circumstances or the nature of the measure.  
According to the Commission, no measures have b een adopted under this exception since the last 
Review of the EU".   Could the EU indicate whether a risk analysis was carried out to establish a ban on beta-agonists as growth promoters or whether the ban constitutes an  exception?  If it was an exception, could the EU 
explain the underlying reasons?  Answer 
The ban on beta-agonists was established by Council Directive 96/22/EC in 1996 following a series of 
severe food poisonings arising from the fraudulent use of compounds belonging to the family of beta-
agonists. 
 
                                                      
7 http://web.oie.int/eng/normes/mcode/a_summry.htm. WT/TPR/M/248/Add.1 
Page 72  
 
 Question 11 
According to Document WT/TPR/S/248, page 57, pa ragraph 107, "regarding animal health and food 
of animal origin, the Commission indicates that EU legislation is largely based on OIE/Codex 
recommendations, standards, and guidelines."  
Taking  into account that the WTO SPS Agreement (artic le 3,1) establishes that "Members shall base 
their sanitary or phytosanitary measures on inte rnational standards, guidelines or recommendations, 
where they exist", what is the rationale for the est ablishing of reference values for many substances 
far below maximum residue levels (MRL) set by th e Codex Alimentarius?  Are Directive 91/414 and 
Regulation 396/05 taken into account in th e establishment of such reference values? 
Answer 
The EU includes the Codex values in the legislation on MRLs, and the EU does not agree with your 
statement of " …establishing of reference values for many substances far below maximum residue 
levels (MRL) set by the Codex Alimentarius", there a re not many cases in such situations.  At some 
occasions, the EU requests its own scientific body, i. e. the European Food Safety Authority (EFSA), to 
review the risk assessments provid ed by international bodies to ensu re they are fully applicable to the 
European environment and population.   
 Question 12 
Still on page 57, paragraph 107, "regarding animal health and food of animal origin, the Commission 
indicates that EU legislation is largely based  on OIE/Codex recommendations, standards, and 
guidelines". 
Could the EU indicate the specific OIE recommendation,  standard, or guideline its legislation is based 
on?  Taking into account the favorable sanitary status of Brazilian export zones along with the 
positive results of the last FVO missions to Brazil, could the EU provide information on the scientific 
or technical justification for the maintenance of Commission Decision 2008/61 requiring that each 
holding of cattle for beef exports to the EU fro m Brazil - the only beef exporting country that is 
targeted by this Decision - must undergo prior offici al inspection before being shipped to authorized 
slaughterhouses? 
Answer 
In the Agreement on the application of Sanitary and Phytosanitary measures,  it is established that 
Members have the right to adopt me asures different than those included on relevant international 
standards, guidelines or recommendations, when det ermine that are not sufficient to achieve the 
appropriate level of sanitary or phytosanitary prot ection, if the measures are supported by scientific 
evidence.  The determination of the appropriate l evel of Sanitary and Phytosanitary protection should 
be based on an assessment of the risks to human, anim al or plant health, taking into account risk 
assessment techniques developed by the relevant international organizations. 
The protective mechanisms developed by the EU to reduce the risk of FMD introduction into the EU, 
have been assessed by EFSA, who recognized that th e measures in place are very effective to reduce 
the risk of introduction of FMD into the EU.  The Commission can then take proportionate, non-discriminatory and transparent measures as regards EU import policy based on the findings of the 
FVO missions.  The additional import requirements imposed to Br azilian beef in January 2008 (Commission Decision 
2008/61/EC of 17 January 2008), were consequence of the deficienci es identified by several EU 
inspections.  It was concluded that to ensure that the same the level of protection can be guaranteed, 
it was necessary to strengthen the control and su rveillance of holdings.  In 2011 FVO has visited WT/TPR/M/248/Add.1 
Page 73 
 
 
  Brazil two times to audit the bovine meat produc tion system, (meat hygiene and traceability, and 
animal health). It was confirmed that the holding registration,  animal identification and movement controls have 
improved, but some deficiencies still remain.  Th e recommendations included in the Draft report sent 
to Brazilian Competent Authorities must be  addressed before considering lift the measure. 
 
Question 13 
Page 59, paragraph 118 - It seem s that current procedures adopted by the European Commission in 
regard to sanitary and phytosanitary issues, and re lated to the Rapid Alert System for Food and Feed 
(RASFF), could be inconsistent with the WTO SPS Ag reement.  Of special concern is the protection 
of "legitimate commercial interests" in order to ensure "the confidentiality of information about 
imported products arising from or supplied in co nnection with control, inspection and approval" 
(Annex C, 1, d).  Through the RASFF the EU frequ ently and unjustifiably publicizes the name of 
products and their respective country of origin, without giving the producers, or their governments, an 
opportunity to present their arguments.  It should be  noted that the mere presence, at the RASFF 
webpage, of the name of a product, related to a co untry, can do harm to its public and commercial 
image.  
 
Could the EU inform whether it has plans to improv e the RASFF in order to eliminate this apparent 
inconsistency ?  
 
Answer 
No brands or operator names are made public by RASFF nor is there any relation made between the 
country of origin and the risk found.  Therefore the Commission considers that commercial interests 
are not damaged by the RASFF notifications.  Furth ermore, any country of origin can provide its 
feedback to the notifications which is then circula ted to the members of RASFF.  If it can be 
demonstrated that the notification was unduly tr ansmitted, then it is withdrawn from the system. 
 
Question 14 
Page 59, paragraph 118 - The recent Escherechia coli  crisis in the EU highlighted some imperfections 
in the current RASFF system which resulted in tr ade losses for EU Member States.  The same has 
occurred to third country exports when the alert wa s not scientifically or technically proven.  Other 
imperfections in the RASFF imposing difficulties and uncertainty to exporters refer to differences in 
the number of shipments submitted to surveillance in  each EU Member States, the lack of opportunity 
to respond to a notification before it is published, the need to extend surveillance to the country of 
origin without well justified reasons, to name a few. 
Could the EU inform whether it is willing to:  (i ) provide response periods from EU Member States 
and third countries before an alert is made public for non-emergency cases;  (ii) improve 
harmonization of procedures among EU Member St ates;  (iii) make RA SFF guidelines public;  
(iv) provide all the necessary info rmation for the traceability of shipments;  and (v) establish a system 
to monitor the number of shipments submitted for reinforced control? 
 
Answer 
There is no legal basis to provide a response period  prior to transmission of the notification unless 
there would be reasonable doubt about the validity of  the notification.  The nature of the system 
requires immediate transmission; the system foresees in follow-up messages that can complete and 
correct where necessary the pi cture of the situation.  If a notificat ion turns out to be unfounded, it is 
withdrawn from the system.  The reason for withdraw al is also made public.  ii) Guidelines are in 
preparation to harmonize the use of RASFF between  Member States and also other efforts are made 
so that systems for reinforced control in the EU w ill work in a more coordinated manner in the near 
future.  iii) The RASFF guidelines, once finalized, will be made public.  iv) A maximum is done to WT/TPR/M/248/Add.1 
Page 74  
 
 ensure that traceability information of consi gnments notified to RASFF is  completed and made 
available to the countries of origin.  v) Such a system is being set up and will be tested in the course of 
this year for products of animal origin. 
 Question 15 
Paragraphs 120 to 122 refer to the use of geneti cally modified organisms (GMOs).  A Commission 
draft Regulation, which is about to  be published, lays down methods of sampling and analysis for the 
official control of feed as regards the presence of genetically modified material where an 
authorization procedure is pending or has expired.  This will set a very low tolerance level for the 
adventitious presence of EU-non-approved genetically modified organisms in EU agricultural imports 
destined only for feed but excluding food.  
 
What is the technical rationale for distinguishing feed from food - or the reasons why the draft 
Regulation does not include food? 
 
Answer 
Regulation (EU) No 619/2011 laying down the met hods of sampling and analysis for the official 
control of feed as regards presence of genetically  modified material for which an authorization 
procedure is pending or the authorization of which has expired has been adopted by the Commission 
on 24 June 2011.  The EU imports significant quantities of commodities produced in third countries where GMO 
cultivation is widespread.  While these imported commodities are used both in the production of food 
and feed, the majority of the commodities likely to contain GMOs are destined for the feed sector 
thereby entailing a higher risk of trade disruption for that sector in cases where Member States apply 
different rules for official controls.  It appeared therefore appropriate to limit the scope of this 
Regulation to the feed sector which, in comparis on with other sectors related to the production of 
foodstuffs, has a higher likelihood for GM presence. 
This being said, as outlined in the Regulation,  the Commission will monitor its application and its 
impact on the internal market as well as on f eed, livestock and other operators such as food 
operators, and, if necessary, bring forward proposals to review this Regulation. 
 
III. TRADE POLICIES AND PRACTICES BY MEASURE 
(2) MEASURES DIRECTLY AFFECTING EXPORTS  
(iv) Official support and related fiscal measures 
 
Question 16 
Paragraph 135 (page 63) of the Report by the Secret ariat informs that "Under the EU Customs Code's 
drawback system, importers can claim repayment of import duties paid on imported goods if they 
export such goods in the form of "compensating products", that is, products resulting from processing 
operations.  In addition, the Customs Code estab lishes a suspension system whereby imported goods 
intended for export in the form of compensating pro ducts are not subject to import duties.  Once in 
force, the Modernized Customs Code will eliminat e the drawback system.  The Commission indicates 
that there are no data on the value of repayments  under the drawback system.  In addition, the 
Commission notes that drawback has not pl ayed an important role in the EU." 
 1. Could the EU provide further information on the concept of "compensating products"? 
2. Could the EU provide more detailed inform ation on the verification system or procedure 
applied to her drawback schemes (duty repayment scheme and suspension system)?   Answer 
1. Compensating products result from the pro cessing operations carried out under inward 
processing.  In the Modernized customs code th e terminology will change and new term "processed 
products" will be used.   WT/TPR/M/248/Add.1 
Page 75 
 
 
  "Processed products" means goods placed und er a processing procedure which have undergone 
processing operations.  2. For goods placed under the suspension system th e authorization holder must provide a bill of 
discharge within 30 days upon expiry of the period for discharge. 
Under the drawback system the repayment is granted  based on the data provided in the claim for 
repayment with reference to the authorization and customs declarations. 
 
(v) Finance, insurance, guarantees, and promotion 
Question 17 
Paragraphs 136 to 139 in pages 63 and 64 of th e Report by the Secretariat inform about that 
"Following the onset of the financial crisis in 2008, the European Commission simplified the "escape 
clause" for short-term export insurance" under the "Directive on medium- and long-term export credit 
insurance".  "Under the escape clause, member St ates may, subject to authorization from the 
Commission, offer export credit insurance cover for "marketable risks", provided that the cover is 
temporarily unavailable in the private market."  
 According to the information provided, today, Austria, Belgium, Denmark, Finland, France, 
Germany, Hungary, Latvia, Lithuania, Luxembour g, the Netherlands, Slovenia, and Sweden  
European are authorized by the Commission to opera te simplified export-credit schemes.  "In January 
2011, the Commission issued a Communication extending the procedural simplification on short-term 
export credit insurance until end 2011".  "In additi on, the Commission decided in December 2010 to 
extend the application of the underlying legal frame work on short-term export-credit insurance (the 
1997 Communication) until end 2012". 
 
The report seems to indicate that the many interven tions by EU member States in support of domestic 
firms affected by the economic crisis were request ed to address temporary market failure in the 
context of the financial crises.  Once the economic recovery has taken hold, Brazil would like to know 
better what would justify the decisions taken by th e Commission to extend the application of the 
simplified export-credit scheme and its underlying le gal framework, until 2011 and 2012 respectively.  
 
Answer 
Two issues have to be distinguished: 1. On 17 September 1997, the Commission published a Communication to Member States pursuant to Article 93(1) of the EC Treaty applyi ng Articles 92 and 93 of the Treaty to short-term 
export-credit insurance.  The validity of this  Communication would initially have expired on 
31 December 2010.  The Commission has however de cided to extend it until 31 December 2012. 
2. According to the afore-mentioned Communi cation, marketable risks cannot be covered with 
public short term export credit support.  Only if su ch risks become temporarily non-marketable, a 
Member State can notify intended public support me asures to the Commission for decision under a 
procedure stipulated in Point 4.4. of the Comm unication ("the escape clause").  During the financial 
crisis, the Commission decided to temporarily facilita te the modalities for providing evidence that the 
risks in question are temporarily non-marketable in th e framework of such notifications.  As some 
Member States have reported by the end of 2010 that  the economic recovery process has not yet fully 
restored the availability of private credit insuran ce to pre-crisis levels, the Commission has decided 
to maintain the temporary simplification of the evi dence rules under the escape  clause by one year.  
This simplification will definitely expire by 31 December 2011.  WT/TPR/M/248/Add.1 
Page 76  
 
 (3) 
MEASURES AFFECTING PRODUCTION AND TRADE  
(iii) Subsidies and other government assistance 
Question 18 
According to paragraph 164 (page 70) of Report by the Secretariat "In general, EU member States 
must notify the Commission, and obtain its authorizati on, before granting state aid.  State aid eligible 
under the General Block Exemption Regulation, whic h entered into force in August 2008, is not 
subject to prior notification and scrutiny.  Neither is de minimis  support (€200,000 or less per 
company over a period of three years)."   1. Could the EU provide further information on the "de minimis  support"?  Is the "€200,000 or 
less per company over a period of three years" a one-time-only type of aid?  Is it available to all 
sectors? 2. Could the EU inform the main sectors benefited from the " de minimis support" (in terms of 
total amount of support?   Answer 
1. Under Regulation 1998/2006 on de minimis aid (OJ L379, 28.1.2006, p.5), the total de minimis aid granted to any one undertaking must  not exceed EUR 200 000 over any period of three 
fiscal years.  The total de minimis aid granted to any one undertaking active in the road transport 
sector must not exceed EUR 100 000 over any period of three fiscal years. 
Several de minimis aid measures can be granted to the same undertaking, provided that the maximum 
ceiling and the other conditions set out in the Re gulation 1998/2006 are respected.  The granting of 
de minimis aid is without prejudice to the possibility  for undertakings to receive other types of State 
aid that are authorized by the Commission or gr anted under the General Bl ock Exemption Regulation 
800/2008 (OJ L 214, 9.8.2006, p. 3).  
Regulation 1998/2006 on de mi nimis aid applies to all sectors with the exception of: 
 aid granted to undertakings active in the fish ery and aquaculture sectors – de minimis aid 
granted to undertakings active in the fisheries  sector is governed by  Regulation 875/2007 
(OJ L 193, 25.7.2007, p. 6); 
 aid granted to undertakings active in the prim ary production of agricultural products -  de 
minimis aid granted to these undertakings is governed by  Regulation 1535/2007 (OJ L 3337 
of 21.12.2007); 
 in certain cases - aid granted to undertakings active in the processing and marketing of 
agricultural products;  
 aid for export-related activities; 
 aid contingent upon the use of domestic over imported goods; 
 aid granted to undertakings active in the coal sector; 
 aid for the acquisition of road freight transpor t vehicles granted to undertakings performing 
road freight transport for hire or reward; 
 aid granted to undertakings in difficulty. 
 
2. De minimis aid is considered not to constitu te State aid within the meaning of Article 107(1) 
TFEU because it is too small to affect intra-commun ity trade or distort competition.  Therefore, the 
Commission does not monitor this type of support and does not collect data relating to this support. 
Member States, however, have to record and compil e all the information regarding de minimis aid 
granted within their jurisdiction so as to be able to  demonstrate that the conditions of the de minimis 
Regulation are respected.  WT/TPR/M/248/Add.1 
Page 77 
 
 
  Question19 
Paragraph 166 (page 710) of the Report by the Secret ariat states that "according to the latest EU 
subsidies notification, outlays under the Europ ean Regional Development Fund, Cohesion Fund, and 
the Instrument for Pre-accession Assistance totalle d close to €37 billion in 2008, the latest year 
available, compared with around €29 billion in 2006.  The EU notification did not specify the 
allocation of these funds by member State or sector.  The European Regional Development Fund 
accounts for approximately 80% of this assistance:  as one of the structural funds, it is mainly used to co-finance investment for the creation or maintenanc e of jobs, infrastructure, and the development of 
local business initiatives and the activities of small and medium-sized enterprises."  
Could the EU provide further information on the specific allocation of these funds by member State or 
sector?  
Answer 
As regards the distribution of the Cohesion Policy funds (Cohesion Fund, European Regional 
Development Fund – ERDF - and European Social Fund - ESF) among the EU's Member States, 
Articles 18, 19, 20 and 21 as well as Annex II of the Council Regulation (EC) No 1083/20068 provide 
for the rules applicable in the 2007-13 programming period.  The specific allocations by Member 
State are based on several criteria such as for example the eligible population, the regional 
prosperity and national prosperity (using for inst ance GDP or GNI per capita), the unemployment 
and employment rate or the populatio n density.  The table below provides the detail of the distribution 
of those funds by EU Member State. 
The details on the allocation by sectors of the funds can be found in the Commission Communication 
COM(2010)110 of 31.03.20109. 
 As far as the Instrument for Pre-accession Assist ance - IPA ("Instrumento de Ayuda de Preadhesión") 
is concerned, all of its money was - and will be - gi ven (contrary to the other two funds mentioned in 
the question) to third countries only and entirely as sole beneficiaries, namely the enlargement 
countries (candidate as well as potential candidate countries for EU accession - Western Balkans and 
Turkey);  no money out of this fund - IPA - is disbursed to EU Member States.  More and detailed information, including the amounts of money involved, can be found at: 
http://ec.europa.eu/enlargement/how-does-it-wo rk/financial-assistance/instrument-pre-accession_ 
en.htm. 
 
 Decided Allocations 2007-2013  - million €  Percentage of all allocations  
AT 1.204 0,3% 
BE 2.064 0,6% 
BG 6.674 1,9% 
CY 612 0,2% 
CZ 26.303 7,6% 
DE 25.489 7,4% 
DK 510 0,1% 
EE 3.403 1,0% 
ES 34.957 10,1% 
FI 1.596 0,5% 
(Cont'd) 
                                                      
8 OJ of the EU L 210/25, 31.7.2006. 
9 http://ec.europa.eu/regional_policy/policy/reporting/cs_reports_en.htm. WT/TPR/M/248/Add.1 
Page 78  
 
  Decided Allocations 2007-2013  - million €  Percentage of all allocations  
FR 13.449 3,9% 
GR 20.210 5,9% 
HU 24.921 7,2% 
IE 737 0,2% 
IT 27.930 8,1% 
LT 6.775 2,0% 
LU 50 0,0% 
LV 4.498 1,3% 
MT 840 0,2% 
NL 1.660 0,5% 
PL 65.222 18,9% 
PT 21.412 6,2% 
RO 19.213 5,6% 
SE 1.626 0,5% 
SI 4.101 1,2% 
SK 11.381 3,3% 
UK 9.891 2,9% 
CB 7.902 2,3% 
EU27 344.630 100,0% 
 
Question 20 
According to paragraph 171 of the Report by the Secr etariat (page 72), "the bulk of non-crisis state 
aid provided by member States was directed at manuf acturing, followed by agriculture.  The share of 
manufacturing in total state aid increased si gnificantly between 20 04-06 and 2007-09 (…)". 
 Could the EU provide further information on what are the main manufactured products that benefit 
from those "non-crisis state aid"? 
 
Answer 
The European Commission always favours a multisecto rial approach when assessing aid. Aid should 
in principle apply across all sectors.  Following th is general principle, assistance provided under 
general State aid rules is not sector specific.  Thus , there are no consolidated data on volumes of aid 
disaggregated by economic sector.   
Question 21 
According to the Report by the Secretariat, pa ragraph 172, page 72, "E xcluding crisis-related 
measures, grants and tax exempti ons were the most common instruments for provision of state aid, 
accounting for approximately 93% of the total in 2009.  (…) Austria, Bulgaria, Cyprus, Denmark, Luxembourg, and Slovenia used grants for the bulk of state aid.  France, Germany, Ireland, Malta, 
Portugal, Slovakia, Sweden, and the United Kingdom u sed tax exemptions for at least 50% of state 
aid." Could the EU provide further information on the na ture of the taxes being exempted and on what 
basis?  Are the products benefited by those exemptions exported by the EU?  Answer 
A precise indication of the types of taxes cannot be provided as this kind of information is not 
collected from Member States for the purpose to give an overview on State aid expenditure in the 
Member States.  In this light, no indication can be given on which types of pr oducts may be concerned 
and which are exported by the EU.   WT/TPR/M/248/Add.1 
Page 79 
 
 
  IV. DEVELOPMENTS IN SELECTED SECTORS 
(1) A GRICULTURE  
(ii) Agriculture policies  Question 22 
After the Escherechia coli  crisis in the EU, the European Commission decided to grant 210 million 
Euros for producers that underwent trade losses.  According to Document WT/TPR/S/248, page 107, 
paragraph 22, support for fruits a nd vegetables in the EU is provi ded through producer organizations 
and their operational programmes, and include cris is prevention and management measures such as 
market withdrawal (where products are withdr awn from the market);  non-harvesting (where no 
commercial produce is taken); and green harvesting (total harvesting of non-marketable products 
before normal harvesting).   Is the Commission willing to increase its subsidies fo r producers in cases of crisis management that 
are already covered by the EU current programmes? 
 
Answer 
Following the E.coli crisis the EU continues to cl osely monitor the situation in the fruit and 
vegetables market, but so far additions or changes to  the currently provided support have not been 
considered.  
IV. DEVELOPMENTS IN SELECTED SECTORS 
(2) T
RADE IN SERVICES  
(i) Introduction  
Paragraphs 50 and 51 
Question 23 
Taking into consideration that the Services Direc tive excludes some services sectors from its scope 
and that the Commission has not drawn up concrete plans to cover several of the excluded sectors, could the EU elaborate on the difficulties in covering the excluded sectors?  
Answer 
It must be clarified that exclusions from the scope of the Services Directive do not make these 
"excluded" sectors and services immune to the application of Articles 49 (the freedom of establishment) and 56 (the freedom to provide serv ices) of the TFEU.  Thus, as long as they are 
services within the meaning of Article 57 TFEU, they may be subject to the rules on freedom of 
establishment and freedom to provide services unde r Articles 49 and 56 TFEU Treaty, as the case 
may be.  
 Furthermore, most of the sectors have been exclude d from the scope of the Service Directive because 
they were/are already covered by specific pieces of EU legislation regulating these service activities. 
This is notably the case for:  financial services; electronic communications services and networks; Services in the field of transport;  services of te mporary work agencies;  healthcare services;  audio-
visual services and radio broadcasting. 
Assessing the need for new sectors to be specifically regulated is a c onstant process in the EU.  As a 
consequence, for instance, hea lthcare services or cash-in transit activities that were excluded from 
the Services directive and were at th e time covered by Treaty prin ciples mainly have since been 
regulated (for healthcare) or are in the process of  being specifically regulated via a particular EU 
legal instrument.  
It is recalled that, as such, all services activities are covered by the Treaty and its general principles 
(such as transparency, proportionality) and the very la rge majority is also covered by specific EU WT/TPR/M/248/Add.1 
Page 80  
 
 instruments (Services directive,  Professional Qualifications directive or other sector-specific 
instruments).  (iv) Telecommunications and postal services 
Question 24 
Paragraph 97 – "The main elements of the reform  package concern the strengthening of consumer 
protection and user rights as well as enhanc ing regulatory independence, co-operation and 
consistency".  
Could the EU provide more detailed information on its views on how consumer protection is to be 
strengthened?   
Answer 
For more information on how consumer protection has  been strengthened, please find the integral 
text of the "Citizens" Rights" Directive on:  http://eur-lex.europa.eu/LexUriServ 
/LexUriServ.do?uri=OJ:L:2009:337:0011:0036:en:pdf. 
 Question 25 
The European Union has recently adopted the Directive 2009/28/EC,  "on the use of energy from 
renewable sources", which aims at, among other objec tives, "setting targets for the shares of energy 
from renewable sources at Community and Member State level", more specifically establishing 
"mandatory national targets consis tent with a 20 % share of energy from renewable sources and a 
10 % share of energy from renewable sources in transport in Community energy consumption by 
2020."  According to the Directive, "[o]ne important mean s to achieve the aim of this Directive is to 
guarantee the proper functioning of national s upport schemes, as under Directive 2001/77/EC, in 
order to maintain investor confidence and allow Me mber States to design effective national measures 
for target compliance."  Paragraph 65 of 2009/28/EC determin es that "Biofuel production should be sustainable. Biofuels used 
for compliance with the targets laid down in this  Directive, and those that benefit from national 
support schemes, should therefore be required to fulfill sustainability criteria." 
 Please explain: (i) the general guidelines of the sustainability criteria for the production of biofuels introduced 
by 2009/28/EC, especially as they relate to: 
a) GATT Article I; 
b) GATT Articles III and XI. 
 (ii) the scientific basis for the application of  "Degraded Land", "Highly Biodiverse Grasslands" 
and "Indirect Land-use Change (ILUC)" as "sustain ability criteria" as per the terms of 2009/28/EC. 
 
Answer 
(i) The sustainability criteria for the production of biofuels laid down in Directive 2009/28/EC 
apply equally to all WTO Members and are theref ore in compliance with GATT Article I. 
 They are not discriminatory as they apply both to do mestic and imported biofuels.  Therefore they 
comply with GATT Article III. 
 GATT Article XI does not apply.  WT/TPR/M/248/Add.1 
Page 81 
 
 
  (ii) The EU has yet to specify the definitions fo r the application of "degraded land" and "highly 
biodiverse grassland". Indirect land use change is not part of the EU sustainability criteria for biofuels.  The Commission adopted on 22 D ecember 2010 the "Report from the Commission on 
indirect land use change of biofuels and bioli quids" (COM(2010)811 final).  As mentioned in the 
report the Commission is currently finalising its impact assessment on this topic. 
 
Intellectual Property 
 
Question 26 
Paragraph 11 of the Government Report (WT/TPR/G/ 248) state that "the Treaty of Lisbon provides 
the EU with the legal framework and tools necessary to meet future challenges and to respond to 
citizens" demands:  1) A more democratic and tran sparent Europe, with a strengthened role for the 
European Parliament and national parliaments…"  Paragraph 12 states further that "the Lisbon Treaty 
has significantly enhanced the role  of the European Parliament, making it a fully-fledged decision-
maker in this field".  
 
Paragraphs 69 and 70 of the European Parlia ment Resolution of 12 May 2011 on unlocking the 
potential of cultural and creative industries:   "69. stresses the need finally to address the "book fa mine" experienced by visually impaired and print-
disabled people; reminds the Commission and Me mber States of their obligations under the UN 
Convention on the Rights of Persons with Disabilities to  take all appropriate measures to ensure that 
people with disabilities enjoy access to cultural material s in accessible formats, and to ensure that 
laws protecting IPR do not constitute an unreasonabl e or discriminatory barrier to access by people 
with disabilities to cultural materials;    Calls on the Commission to work actively and po sitively within the World Intellectual Property 
Organization (WIPO) to agree on a binding legal no rm based on the treaty proposal drafted by the 
World Blind Union and tabled at WIPO in 2009". 
 
In spite of the European Parliament Resolution, in WIPO negotiations the European Union continues 
to oppose a biding legal norm on the matter. 
 
- Is the European Union and the European Commission bound by the European Parliament's 
Resolutions?  - If not, what is the legal value of the European Parliament Resolutions?   
 
Answer 
The European Parliament adopts resolutions in order to  suggest a political view or a desire to act in 
a given area.  They have a political charac ter and are not legally binding in nature.  
 Question 27 
Paragraph 24 of the Government Report (WT/TPR/G/ 248) states that the "Digital agenda for Europe" 
"will promote a digital single market, extend Internet  access, help make devices and applications more 
interoperable, boost trust in the Internet by enha ncing security and protecting privacy for citizens and 
business and leveraging investment in ICT research and innovation".   
 Paragraph 228 of the Secretariat Report (WT/TPR/S/248) states that "the adoption of the Lisbon Treaty marked an important step forward for the fu rther development of a truly EU-wide IPR regime. 
It inserts an IP-specific provision. Article 118 of the Treaty on the Functioning of the European Union 
(TFEU) stipulates that measures shall be establishe d "for the creation of European intellectual 
property rights to provide uniform protection of intellectual property rights throughout the Union and 
for the setting up of centralized Union-wide authorization, coordination and supervision arrangements". WT/TPR/M/248/Add.1 
Page 82  
 
 Paragraph 238 of the Secretariat Report (WT/TPR/S /248) informs of the approval, in October 2009, 
of the "Hadopi Law" in France, under which individual internet subscribers must verify that their access does not infringe copyright legislation. In case of infringement, the HADOPI may start a "3- 
strike" procedure, which may lead to the susp ension internet services for alleged infringers. 
 
Does the EU aims at establishing a single procedure to dealing with on-line copyright infringements?  
If so, to which extent such single procedure will b ear similarities with the French "Hadopi Law"?  
 
Answer 
The EU is currently preparing an Impact Assessm ent examining options for a revision of the IPR 
Enforcement directive (Directive 2004/48/EC), where  a comprehensive approach to the enforcement 
of intellectual property rights and the challenges posed  by the digital environment is being addressed. 
 The Hadopi law is a national law adopted by the French Parliament. Member States are allowed 
under the EU treaties to legislate in  areas covered by EU law to the extent national legislation is not 
conflicting with EU rules. 
 Without prejudice to the outcome of the Impact Assessment in view of the revision of Directive 
2004/48/EC, it is however not the Commission's intentio n to promote at EU level new measures 
against end-users but rather to target the sou rces of IPR infringements committed through the 
Internet, and, to that end, foster cooperation of in termediaries, such as in ternet service providers, 
while being compatible with the goals of broadband policies. 
Question 28  
Paragraph 78 of the Government Report (WT/TPR/G /248) states that the anti-counterfeiting trade 
agreement (ACTA) helps to ensure a high level of enforcement by pa rticipating countries, limiting the 
market for counterfeit goods and strengthening pr otection for copyright and trademarked EU goods 
and products with EU ge ographical indications.  
 Given that intellectual property rights are territori al rights, how does the EU determine whether goods 
in transit infringe copyright and trademark ri ghts in the EU?  On what grounds are these goods 
seized?   Answer 
It is essential to recall that the system of bord er measures as established under Regulation 1383/2003 
is primarily intended as an instrument to enable th e right holders to initiate proceedings to determine 
whether an intellectual property right has been infringed. The mere fact that goods are in transit through EU territory, and there is an intellectual property 
right title applicable to such goods in the EU terr itory, does not in itself c onstitute enough grounds to 
determine that the products at stake infringe those rights.  The determination of whether goods in transit const itute "goods infringing an intellectual property 
right" belongs to judicial authorities in the EU  in accordance with the relevant substantive 
intellectual property laws.  
Council Regulation 1383/2003 and its implementing Regulation 1891/2004 set out the conditions for 
action by customs authorities in the EU when goods are suspected of infringing intellectual property rights, as well as the measures to be taken when the relevant goods are found to infringe intellectual 
property rights by the relevant judicial authorities.  EU customs authorities have the right to control 
all goods in any of the situations referred to in Article 1(1) of the Regulation. 
 
The mere fact that goods are in transit throughout the applicable customs procedure does not in itself 
preclude measures to protect intellectual property ri ghts in particular where there is a risk that the 
goods may be diverted onto the internal market of the EU.  WT/TPR/M/248/Add.1 
Page 83 
 
 
  Regulation 1383/2003 requires custom s authorities to have enough grounds for suspecting that goods 
are likely to be used in a way that  infringes an intellectual property right in order to detain them when 
under their supervision, both when acting on their own motion and when acting on the application of 
right-holders.  
The Regulation requires that the application for acti on must contain all the information needed to 
enable the goods in question to be readily recognize d, being information on technical description of 
the goods and any specific information the right holder may have on fraud patt erns.  Furthermore, 
right holders should forward any other information they might have on goods or rights.   
When acting on their own motion, customs authorities will assess the available information on goods 
(packages, leaflets inside the packages, documen ts accompanying the shipment) and IPR in question 
(Patent office registers) and thei r experience in similar cases.  
If customs authorities do not have enough grounds to suspect that products infringe an IPR, they may 
not detain the goods. 
 
Paragraph 97 of the Government Report (WT/TPR/G/248)  informs that negotiations with the Andean 
Community were concluded in 2010, resulting in a Free Trade Agreement with Peru and Colombia.  
 Question 29 
Paragraph 97 of the Government Report (WT/TPR/G/248) informs that negotiations with the Andean 
Community were concluded in 2010, resulting in  a Multi-Party Trade Agreement with Peru and 
Colombia.   Both these agreements contain provisions on "test data exclusivity" with an extended period of 
protection of five years after the patent has expire d.  According to a from Health Action International 
(http://www.haiweb.org/11112009/ReportIFARMA Im pactStudyPeru(EN).pdf) these provisions will 
hamper generic competition and imply an a dditional cost of US$300 million on Peruvians 
expenditures on medicines by 2025.  How are these "tex t data exclusivity" provi sions compatible with 
Doha Declaration on TRIPS and Public Hea lth, which affirms that the TRIPS Agreement  "can and 
should be interpreted and implemented in a manne r supportive of WTO members' right to protect 
public health and, in particular, to promote access to medicines for all"?  
 
Answer 
The promotion of access to medicines in developing  countries, including generic medicines, is an 
essential pillar of the EU Intellectual Property (IP ) policy.  The protection of test data of 
pharmaceuticals and agricultural chemical products is  an obligation under Article 39.3 of the TRIPS 
Agreement. Data protection is not incompatible with  ensuring effective access to medicines. On the 
contrary, the flexibilities provided under the TRIPS agreement (allowing e.g. for compulsory licensing 
under certain conditions) also apply to data protection.   In addition, the EU is fully committed to 
supporting the use of the flexibilities in TRIPS in  accordance with the Doha Declaration on TRIPS 
and public health, to which the Multi-Party Trade Agreement between the EU and Peru and 
Colombia explicitly refers. 
 
Question 30 
Paragraph 235 of the Secretariat Report (WT/TPR/S/ 248) states that "although copyright holders have 
the exclusive right to reproduce their works, EU le gislation allows member States to limit rights by 
permitting private copyright on condition that the right holders receive "fair compensation".   
 
Are exception and limitations to the benefit of persons  with print disabilities subject to the payment of 
"fair compensation"?  
 WT/TPR/M/248/Add.1 
Page 84  
 
 Answer 
Article 5(3)(b) of Directive 2001/29 provides for an  optional exception for the benefit of people with a 
disability, which are directly related to the disab ility and of a non-commercial nature, to the extent 
required by the specific disability.  While this provision does not explicitly provide for "fair 
compensation" to be made, Recital 36 of the Di rective allows Member Stat es to provide for fair 
compensation for right holders also when applying the optional provisions on exceptions or 
limitations which do not require such compensation.  Question 31 
Paragraph 236 of the Secretariat Report (WT/TPR/S/248) states that "a key EU priority is to digitize 
and disseminate Europe's cultural heritage by cr eating digital libraries, which can be accessed by 
researches and consumers across Europe. In 2011, tw o proposals were made with respect to digital 
libraries and archives: one was made to enable th e digitalization and online accessibility of "orphan 
works", the other to set up collective licensi ng schemes for "out-of-commerce" works".  
 
Brazil is interested in learning more about these two initiatives and would appreciate if the EU could 
provide further information on them.  Would the EU consider that these initiatives have  a place in the current discussions on copyright 
exceptions and limitations to libraries, archives an d education in the World Intellectual Property 
Organization?  
 
Answer 
The Commission adopted a proposal for a directi ve on certain permitted uses of orphan works (COM 
(2011) 289 final:  http://ec.europa.eu/int ernal_market/copyright/o rphan_works_en.htm) on 
24 May 2011.  The proposal is based on the mu tual recognition of the orphan work status - as 
determined by a diligent search in the country of its first publication - throughout the EU.  This will 
help European citizens to have access to digital li braries across borders.  The scope of the proposal 
covers printed works and images embedded therein, and audio/audio-visual archives.  The proposal 
will be subject to negotiations between the Counc il and the European Parliament in the coming 
months after which Member States will implemen t the directive into their national laws.   
 
With respect to out-of-commerce wo rks, the Commission has not made a legislative proposal but is 
chairing a stakeholder dialogue amongst libraries, authors, publishers and collecting societies with the aim of agreeing on key principles to facilitate the licensing of rights in out-of-commerce works 
and enable their digitisation and making available.  
 These two initiatives are not concerned with excepti ons and limitations to copyright.  The orphan 
works proposal provides common rules for determini ng the "orphan status" of a work and provides 
for mutual recognition.  The out-of-commerce initia tive is a dialogue between stakeholders to find 
practical solutions based on vo luntarily negotiated licences.  
 Question 32 
Paragraph 241 of the Secretariat Re port (WT/TPR/S/248) refers to "the  creation of a single EU patent, 
and the establishment of a court with jurisdicti on both for European patents and for future EU 
patents".  "The unified patent court is to be established by the conclusion of an international 
agreement involving the EU, its Member States, a nd other states of the European Patent Convention 
(EPC)". 
Will this unified patent court be guided by the jurisprudence of the EU Member States?  
 
Answer 
It is currently envisaged that the future unified patent court would be crea ted by an international 
agreement between the Member States of the EU.  Th is patent court would be specialised in patent WT/TPR/M/248/Add.1 
Page 85 
 
 
  litigation, with unified jurisdiction over current Eu ropean patents and future European patents with 
unitary effect in the Member States that partici pate in enhanced cooperation.  The unified patent 
court would be an independent c ourt common to the Member States with its own structure which 
includes a common Appeal Court and a Court of First Instance composed of central, regional and 
local divisions throughout the EU.  The unified paten t court would inter alia apply relevant EU law, 
the European Patent Convention and relevant national law of the Member States.  To the extent that it 
would apply national law, the unifie d patent court will have to consid er the existing jurisprudence in 
the Member States.  
 
Question 33 
In January 2011, a number of academics issued an "Opinion of European Academics on Anti-
Counterfeiting Trade Agreement" ("ACTA").  Th e European Commission has issued in reply a 
working paper entitled "Commission Services Work ing Paper" (http://trade.ec.europa.eu /doclib 
/docs/2011/april/tradoc_147853.pdf).  
In reply to a question, the Commission has stated that: 
"During the ACTA negotiations, the Commission servi ces insisted on a broad definition of trademark 
infringements in Section 3 on Border Measures, in or der to keep the necessary flexibility in view of 
the on-going review of the applicable EU legislation (Regulation 1383/2003).  
 However, as correctly pointed out in the Opinion, article 13 ACTA was drafted in a way that allows 
the Parties to exclude certain forms of IP infringeme nts from border measures.  In the EU, this is the 
case for forms of trademark infringements other than counterfeiting (as well as for topographies of semiconductor products, utility models  or products containing or manufactured using a third parties" 
undisclosed information, without consent).  There is, therefore, no extension of the EU acquis  and 
ACTA does not trigger any obligation to modify Regulation 1383/2003. 
 
During the negotiations, the Commission services were pa rticularly cautious to ensure that neither the 
border enforcement provisions nor any other ACTA pr ovision will target legitimate trade in medicines 
either directly or indirectly. In particular, as stated in the Commission's written answers to EP Written Declaration 12/2010, to EP Resolution of 10/03/2010,  to questions by Members of the European 
Parliament ( inter alia  P 9346/2010,  P-9026/10EN, P-5214/10EN, P-0683/10EN and E- 4292/10EN) 
and in Commissioner De Gucht's presentations to th e European Parliament plenary of 9 March, of 
8 September 2010 and of 20 October 2010, it is not the Commission's intention to use enforcement 
measures (be it at the border or in civil or penal litig ation) to hinder the legitimate trade in generic 
medicines.  
The Opinion authors consider that, in one particul ar instance, ACTA could represent a danger for the 
international trade of generics, (i.e. the risk that generic medicines could be seized based on 
allegations of "ordinary" trademark infringements).    We consider that there is no such  risk for the following reasons:  
 
- as pointed out in the Opinion, article 13 ACTA contai ns a level of flexibility  that allows the parties 
to exclude certain forms of IP infringements, na mely on the basis of public health grounds;   
 - ACTA contains specific safeguards to ensure that its implementation would not hinder access to 
medicines (see next paragraph);   
 
- In any event, defining and determining whethe r a trademark infringement exists on the basis of 
similarity to protected trade marks or other reas ons, is a matter of the substantive protection of a 
trademark in each ACTA party and of assessing this in  accordance with the respective legal orders of 
the Parties.  These matters are neither addressed nor modified by ACTA.  WT/TPR/M/248/Add.1 
Page 86  
 
 In this respect, we recall that the Commission has carefully considered and addressed, in the context 
of ACTA, concerns regarding access to medicines in  developing countries in the following manner:  
 
o ACTA contains an express reference to Doha  Declaration on TRIPS and Public Health and 
incorporates the objectives and principles of articles 7 and 8 TRIPS, which refer, inter alia, to 
the safeguard of public health;  
o Patent infringements are expressly not covere d by penal enforcement provisions in ACTA, 
nor by border measures in ACTA; 
o ACTA leaves it optional for signatories to appl y the civil remedies section to patents (" .. 
may.. "). 
Therefore, these measures, which in clude several layers of safeguards, should allay the concerns of 
those who fear that ACTA could adversely affect  access to medicines in developing countries." 
 How does the EU legislation and that of its Memb er States disciplines the applicability of border 
measures to patent infringements?  Regarding bor der measures to patent infringements in goods in 
transit, what are main changes to the revised version of Regulation 1383/2003? 
Will the revised version of Regulation 1383/2003 a ddress the issue of the "manufacturing fiction" 
applied by the courts and tr ibunals of the Netherlands?  
 
Answer 
The relevant border measures are contained in Co uncil Regulation 1383/200 3 and its implementing 
Regulation 1891/2004, whic h set out the conditions for action by customs authorities in the EU when 
goods are suspected of infringing intellectual prope rty rights, as well as the measures to be taken 
when the relevant goods are found by the relevant j udicial authorities to infringe intellectual property 
rights.  EU customs authorities have the right to cont rol all goods in any of the situations referred to 
in Article 1(1) of the Regulation. 
Article 2(1) c of Council Regulation 1383/2003 incl udes infringements to patents under the Member 
States" law within the scope of inte llectual property rights covered by it. 
Pursuant to Article 288 of the Treaty on the f unctioning of the EU, regulations have general 
application (i.e. not just a partic ular individual/MS to which they are addressed, but all Member 
States, individuals and EU institutions), they are binding in their entirety and directly applicable in all EU Member States. 
The revision of Regulation 1383/2003 is going ahead as planned. The European Commission adopted 
a proposal on 24 May 2011, which is now before the Council and European Parliament. 
 With regards to all IPR infringements, includi ng patents, and the various circumstances where 
customs would be competent to detain goods upon IPR infringements, including goods in transit, the 
proposal has notably removed the provisions that  had created uncertainty in the past (recital 8 of 
Regulation 1383/2003);  it has em phasized its procedural nature and clarified that it does not 
introduce any new criterion for ascertaining the existen ce of an infringement of the intellectual 
property law applicable (recital 6 of the proposed regulation); and has added a new recital (recital 
17) underlining the importance of a smooth flow of ge neric medicines in transit. Also, the language in 
the operative provisions of the Regulation now follows more closely TRIPS language requiring 
adequate evidence before customs authorities can detain goods. 
 WT/TPR/M/248/Add.1 
Page 87 
 
 
  BRAZIL III 
 
WT/TPR/G/248  
 
2.2 Developments in the Internal Market and Central Policy Areas 
 
Paragraphs 35 and 36 
Question 34 
Considering the goals established in the Renewable En ergy Directives, for integration of  renewable 
energy  sources in the EU member estates national energy mixes, what are the trade policies being 
implemented, or already in place, in order to facilitate and promote the fulfillment of these goals? 
 
Answer 
In accordance with the Renewabl e Energy Directive the Commission will monitor the supply of the 
EU market for biofuels and in its reports in par ticular analyze the relative environmental benefits and 
costs of different biofuels, the effects of the EU 's import policies thereon, the security of supply 
implications and the ways of achieving a bal anced approach between domestic production and 
imports.  The first such Commission report is due by 2012.  Question 35 
What are the expected impacts of the EU Fuel  Quality Directive (FQD) (Directive 98/70/EC as 
amended by 2009/30/EC) and of th e EU Renewable Energy Directive (2009/28/EC), on EU trade? 
How would these Directives impact EU trade on bioenergy and bioenergy feed stocks? 
Answer 
The contribution from biofuels towards the targets of  these Directives is expected to be significant.  It 
is likely that demand for biofuels will be met through a combination of EU production and imports, 
which would imply an increase in EU imports and trade. 
 Question 36 
Considering the increasing use of biofuels in the EU  and its contribution to create an international 
market for biofuels, could the EU elaborate on what  measures are being taken to ensure sustainability 
in biofuels production within the EU, including land- use change implications and biodiversity issues? 
 Answer 
The EU sustainability criteria related to greenhouse gas savings, land with high carbon stock and land high biodiversity value apply irrespective of wh ether the raw materials we re cultivated inside or 
outside the EU.  In addition, agricultural raw materials cultivated in the EU and used for the 
production of biofuels have to be obtained in acco rdance with the requirements and standards set out 
in the provisions referred to under the heading "Env ironment" in part A and in point 9 of Annex II to 
Council Regulation (EC) No 73/2009 of 19 Ja nuary 2009 establishing common rules for direct 
support schemes for farmers under the common agric ultural policy and establishing certain support 
schemes for farmers (OJ L 30, 31.1.2009, p. 16) and  in accordance with the minimum requirements 
for good agricultural and environmental conditions  defined pursuant to Article 6(1) of that 
Regulation. 
 Question 37 
Could the EU provide information on support pr ogrammes, tax reductions and other Government 
incentives (direct and indirect) for renewable energy producers/traders in the EU?  Please focus on the 
main three renewable energy sources in use (bioenergy, wind and solar). 
 
Answer 
Such information is available in Sections 4.3,  4.4 and 4.5 of the EU Member States "National 
Renewable Energy Action Plans", which are publis hed on the Transparency Platform established by WT/TPR/M/248/Add.1 
Page 88  
 
 the Renewable Energy Directive (http://ec.europa. eu /energy/renewables /transparency_platform 
/transparency_platform_en.htm).  3.6 Sustainability and Development  
Paragraphs 107-112 
Question 38 
Could the EU provide additional details on the sustainability criteria – already implemented or in the 
process of implementation – for biofuels (solid and liquid) producers/traders (inside and outside the 
EU) to be eligible to receive Government incentives?  Answer 
Concerning biofuels and bioliquids, the Commiss ion has adopted in 2010 two Communications with 
non-legal guidance aiming to assist the impl ementation of the EU sustainability criteria 
("Communication from the Commission on voluntary schemes and default values in the EU biofuels 
and bioliquids sustainability scheme" (OJ 2010/C 160/ 01);  "Communication from the Commission on 
the practical implementation of the EU biofuels  and bioliquids sustainab ility scheme and on counting 
rules for biofuels" (OJ 2010/C 160/02)).  Concerni ng solid biomass for energy, there are no EU 
sustainability criteria.  The Commission has adopted  in 2010 a report on sustainability requirements 
for the use of solid and gaseous biomass sources in  electricity, heating and cooling (COM(2010) 11 
final) setting out recommendations on this topic.  
 
Question 39 
Could the EU provide additional information on ho w biofuels (solid and liquid) producers/traders 
shall prove compliance with the abovementioned sustai nability criteria in order to become eligible for 
Government incentives?  Will there be any diffe rences of treatment between European and non-
European producers as regards the methods and mechanisms for proof of compliance? 
 
Answer 
The EU sustainability criteria apply to biofuels and bioliquids. For their biofuels to count against 
renewable energy use targets and incentives, economic  operators must provide evidence to Member 
States that the EU sustainability criteria relating to greenhouse gas savings, land with high 
biodiversity value and land with high carbon stock ha ve been met.  They can do this in three ways:   
1. By providing the relevant national authority with  data, in compliance with requirements that the 
Member State has laid down (a "national system");  2. By using a "voluntary scheme" that the Commission has recognized for the purpose; 3.  In accordance with the terms of a bilateral or 
multilateral agreement concluded by the Union w ith third countries and which the Commission has 
recognized for the purpose.  EU Member States have to arrange for the implementation of the first 
option.  With regard to the second option the Commission assesses a "voluntary scheme" regardless 
of its origin;  further detail is provided in  the Communication from the Commission on voluntary 
schemes and default values in the EU biofuels and bioliquids sustainability scheme (OJ 2010/C 
160/01).  The third option is not available to EU-producers.   
Question 40 Considering the information that the EU is examin ing closely the use of certification of natural 
resource based products and private labeling as tr ade policy tools to achieve climate change 
objectives, could the EU clarify how it intends to ensu re that such tools would not be in disagreement 
with multilateral trade rules?  Could the EU elabor ate on the possibility that the use of such tools 
might leave room for discriminatory treatment of products based on the production process and not in 
their characteristics? WT/TPR/M/248/Add.1 
Page 89 
 
 
  Answer 
The need to abide by international obligations is a factor that is fully taken into account in the 
decision-making processes leading to the adoption of measures (including measures regarding 
labeling and certification of pr oducts) by public authorities in the EU.  The avoidance of 
discrimination between supplier countries, national t reatment provisions, as well as exception clauses 
in the WTO Agreement are among the rules and principl es that are taken into account, on a case-by-
case basis and in light of the relevant circumstances.  
 
WT/TPR/S/248 
 
(3) MEASURES AFFECTING PRODUCTION AND TRADE  
Paragraph 224 
Question 41 
Concerning paragraph 224, please provide informati on regarding the effects on the budget of EU-
Members for Public Health of the anti-competitive behavior by pharmaceutical companies as found 
under the inquiry published in 2008. 
 
Answer 
The 2008 inquiry found that in some cases cheaper generic drugs were unduly kept out or delayed into the market and that such anti-competitive be havior can be quantified th rough proxies.  For 
instance, the sector inquiry (see http://ec.eu ropa.eu/comm/competition/sectors/pharmaceuticals 
/inquiry/index.html) shows that the overall impact of  generic entry is significant, offering European 
patients better access to safe, innovative and affo rdable medicines, as well as reducing the burden 
carried by national health systems.  In markets wh ere generic medicines beco me available, average 
savings to the health system (as measured by the d evelopment of a weighted price index of originator 
and generic products) are estimated at almost 20% one  year after the first generic entry, and about 
25% after two years (EU average).  The sector inqui ry has also estimated that aggregate expenditure 
on the sample of medicines analyzed, which was abou t € 50 billion over the period following loss of 
exclusivity would have been at least € 15 billion high er without generic entry.  The potential savings 
attainable in case generic entry had taken place imme diately upon loss of exclusivity of the originator 
medicine, could have led to additional savings of about € 3 billion.  In other words, the generic 
savings could have been 20% higher and su ch is likely a conservative estimate. 
 Paragraph 232 
Question 42 
Document WT/TPR/S/248, paragraph 232 reads: "(…)  extend the term of protection for performers 
and producers of sound recordings, from 50 years to 95 years.  According to the EU, this extension 
would bring performers´ protection closer to that gi ven to authors (life plus 70 years), and this would 
not have a negative impact on prices".  Please clarify how the adoption of this kind of measure does not bring negative impact on prices. 
 
Answer 
The Impact Assessment on the Legal and Economic S ituation of Performers and Record Producers in 
the European Union (SEC (2008) 2288 of July 2007)10 answers the question raised.  In short, several 
empirical studies show that the impact of a term extension would not be negative for consumers as the 
price of sound recordings that are out of copyright  is not lower than that of sound recordings in 
copyright.  This is true in relation to statutory remuneration claims and for the sale of CDs.  
                                                      
10 http://ec.europa.eu/internal_market/copyright/docs/term/ia_term_en.pdf. WT/TPR/M/248/Add.1 
Page 90  
 
 The "single equitable remuneration" due for br oadcasting and performances of music in public 
venues would remain the same as these payments are ca lculated as a percentage of the broadcasters" 
or other operators" revenue.  As far as CD  sales are concerned, very few studies analyze the 
difference between prices of in-copyright and out -of copyright recordings.  A study by Price 
Waterhouse Coopers concluded that there was no  systematic difference be tween prices of in-
copyright and out-of copyright recordings.  It is the most comprehensive study to date and covers 129 
albums recorded between 1950 and 1958.  On this basis, it finds no clear evidence that records in 
which the related rights have expired  are systematically sold at lower prices than records which are 
still protected.  Other studies have been considered in analysing the impact of copyright or related 
rights on prices.  Even in the category of books,  either no overall price difference is found between 
the samples of in- and out-of-copyright books, or th e impact of copyright on the price is extremely 
model-dependant and therefore the estimates obtained cannot be seen as very robust.  Given the lack 
of widely accepted models and the length of the time  span, it is fair to say that there is no clear 
evidence that prices will increase as a result of the extension of the term of protection.  
 
Paragraphs 235 and 236 
Question 43 
How do the European Union Members guarantee the full exercise of the right of making private 
copies of works, referred in document WT/TPR/S /248, paragraphs 235 and 236, taking into account 
the provisions on the protection against the circum vention of technological protection measures as 
provided under WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty 
(WPPT)? 
 
Answer 
Article 5(2)b of the Directive on the harmonizatio n of certain aspects of copyright and related 
rights in the information society (2001/29/EC) says that Member States may provide for exceptions 
or limitations to the reproduction right in respect  of reproductions on any  medium made by a 
natural person for private use and for ends that are neither directly nor indirectly commercial, on 
condition that the right holders receive fair compen sation which takes account of the application or 
non-application of technological measures referred to  in Article 6 to the work or subject-matter 
concerned. 
Member States are therefore free to implement the private copying exception (it is not a right, it is 
an exception), the way they see  fit as long as they take account of the application or non-
application of technological measures.  The Dire ctive does not prescribe  how these measures 
should be taken into account.  
The objectives of the 2001/29/EC Directive are to adapt legislation on copyright and related rights 
to reflect technological developments and to trans pose into Community law the main international 
obligations arising from the two treaties on copyright and related rights adopted within the framework of the World Intellectual Property Or ganization (WIPO) in December 1996.  Therefore, 
the two internet treaties are implemented thr ough the so-called Information Society Directive 
2001/29/EC. 
 
Paragraphs 239 and 240 
Question 44 
Concerning document WT/TPR/S/248, paragraphs 239 and 240, what is the actual backlog for patents 
in the EPO and what is the actual average ti me for the granting of patent applications? 
 
Answer 
The European Patent Organization (EPO) is an independent intergovernmental organization; 
although all EU Member States are members of th e EPO, the EU itself is not a member and the 
organization is not connected to the EU.  The EU is  not therefore able to answer questions relating to WT/TPR/M/248/Add.1 
Page 91 
 
 
  services provided by the EPO.  The EPO may however be  able to provide this information if contacted 
directly. 
 
Paragraph 255 
Question 45 
Paragraph 255 of document WT/TPR/S/248 states that  only six third-country geographical indications 
are registered in the EC.  How many applications  for GIs are pending in the EC for non-EC Members? 
 
Answer 
For wine:  1;  for spirit drinks:  3;  for food products:  13. 
 Paragraphs 260-263 
Question 46 
Concerning border measures of Intellectual Property Rights, referred to in document WT/TPR/S/248, 
paragraphs 260 to 263, has the EU registered any case of abuse of enforcement procedures by right 
holders?  What were the Intellectual Prope rty Rights involved? Please provide details. 
 
Answer 
At the EU level data referring to the case of abuse of enforcement procedure by right holders are not 
gathered. 
 
(1) MEASURES DIRECTLY AFFECTING IMPORTS  
Paragraph 122 
Question 47 
Paragraph 122 of document WT/TPR/S/248 (pg. 60)  states that "several  member States have 
prohibited or restricted cultivation of GMOs authori zed at the EU level" and that "according to the 
scientific opinion of the European Food Safety Ag ency, "these measures were not based on new or 
additional scientific information since de authoriza tions were granted and therefore such measures 
were not justified from a legal point of view".  Could the EU clarify whether there are plans to make member States comply with the EU regulation on the matter? 
 
Answer 
The regulatory process foreseen in EU legislation to decide on Member States' safeguard clauses has 
shown to be difficult to apply as far as cultivation of GMOs is concerned.  Th is is the reason why the 
Commission has decided in July 2010 to make a proposal on GMO cultivation whose purpose was 
precisely to tackle this issue.  The proposal aims at  providing the possibility to Member States to take 
into account other grounds than the assessment of risks to health and environment when considering 
the effective cultivation of GMOs on their territory.  It is expected that, when this proposal will be 
adopted, Member States will repeal the measures th ey have adopted under the safeguard clauses 
procedures and will adopt measures under the new Ar ticle introduced by the proposal whenever they 
wish to make prevail legitimate considerations related  to the public interest which do not question the 
safety of the GMOs concerned.  
2.3 Development and Implementation of the EU Investment Policy 
 
Paragraph 41 
Question 48 
According to document WT/TPR/S/248, part 2.3,  page 10, "In [the communication "Towards a 
comprehensive European international investment policy"], the Commission takes the view that the 
principles and parameters for EU investment prot ection negotiations will be inspired by the best WT/TPR/M/248/Add.1 
Page 92  
 
 practices developed by Members States, and include among others such standards as the guarantee of 
a fair and equitable treatment, full protection and security, non-discriminatory treatment or protection against unlawful expropriation". Question: Could the European Union clarify the concept of "unlawful expropriation"?  Are indirect expropriation, or measures equivalent to expropria tion, considered "unlawful expropriation" by the 
European Union? 
 
Answer 
Unlawful expropriation" is a common standard, p resent in most interna tional agreement covering 
investment protection, including those concluded by  EU Member States with third countries. With 
regards to the later, a definition of the notion of "unlawful expropriation" or additional clarifications 
or explanatory statements are not generally used  in order to give additional guidance as to the 
interpretation to be given to the notion.  As explained in the report, th ere are only the main principles and parameters for the EU investment 
protection negotiations that are flagged in the Commission's Communication, and the "unlawful 
expropriation" cannot be excluded even  from a non-exhaustive list of the main standards. At this point 
in time, we can only reiterate our intention to ma ke this standard part of our international investment 
policy and to confirm that, in our view, all forms of  expropriation are covered by  this standard. It is 
also our view that a clear formulation of the bal ance between different interests at stake, such as the 
protection of investors against expr opriation and the right of each Party to regulate in the public 
interest, needs to be ensured.  
 Question 49 
Regarding document WT/TPR/S/248, part IV.2, "T rade in Services", could the European Union: 
a) give further information on its Members States´ provisions on market access for foreign 
suppliers of legal services? 
b) give further information on its Members St ates´ provisions on national treatment for museums 
and other cultural services (CPC 963)? 
 
Answer 
Individual Member States of the EU have taken different Market Access  commitments under the 
GATS.  As far as it concerns the scope of commitm ents, all Member States, except from BG, CZ, EE, 
FI, HU, LV, PL, RO, SI and SK have taken commitm ents with regards to legal advisory services on 
home (of the supplier) country law and public interna tional law (excluding EC law, which is part of 
host country law).  The specificities of the afo rementioned countries as to the scope of their 
commitments can be viewed in the respective schedules.  Cross- border supply (mode 1) is fully 
committed, i.e. no limitations, for all MS, except from CY, MT, EE, FR, PT, SE and SI. Mode 2 is fully 
committed for all MS, apart from CY and MT, whic h are unbound. For the supply of legal services 
through commercial presence (mode 3), all MS except AT, CY, CZ, DE, EE, FR, FI, HU, LV, MT, PL, RO, SE, SI and SK have no limitations.  AT, CY, MT and RO are unbound, for the rest of the aforementioned MS, commercial p resence is committed under the spec ific limitations listed in the 
respective schedules of commitments. 
 
Cultural services included under CPC 963 (library, archive, museums and other cultural services) 
represent a very specific category of services, that are not only tradable and as such covered 
by multilateral instruments (GATS) as well as by regional and bilateral instruments (trade 
agreements), but also encompass a cultural dime nsion as they convey identities, values and meaning. 
This dual nature is recognized by the 2005 UNESCO  Convention on the protection and promotion of 
the diversity of cultural expressions (ratified by 115 countries and by the EU).  Therefore, trade 
commitments of the EU/EU MS in this sect or are rather rare, both in multilateral and 
bilateral/regional context, since most  MS prefer to retain full flexibility with regards to future policy 
choices destined to promote and protect cultural di versity, in line with the UN ESCO convention. E.g., WT/TPR/M/248/Add.1 
Page 93 
 
 
  under the GATS, only 1 out of 27 MS have full NT commitments in mode 1, 2, 3 (AT) while 1 MS  (EE) 
has full NT commitments only for mode 2 and another one  only for mode 3.  The situation is similar in 
bilateral/multilateral trade agreements. Despite the limited level of trade commitments in the sector, in practice EU MS maintain very few NT 
limitations that could/might affect foreign servic es and services suppliers of "other cultural services". 
Such provision might mostly refer to discriminato ry access to subsidies destined to promote and 
protect cultural diversity.  MS might also have au thorization/licence procedures in place (e.g. for 
private museums that are to be considered cultura l organizations or for private archives) but such 
provisions concern MA rather than NT and the criteria used are non-discriminatory.  
BRAZIL IV 
 
WT/TPR/G/248 
 Question 50 
The data on outward and inward FDI flows presented by  the EU in its report is not consistent with the 
corresponding data made available by the EUROSTAT  system.  Could the EU please clarify what is 
the source of the data included in the report a nd which source is more accurate?  (Section 2.4). 
 
Answer 
The most accurate data source for EU FDI flows are indeed Eurostat, which is also the one used in 
the report.  However, it is correctly observed that  there is a problem with the ranking (partners and 
amounts) for FDI inflows and outflows in two sentences of this paragraph in the report.  
Unfortunately the figures and ranking in the two sentences in the paragraph, which relates to the 
main destinations of EU FDI outflows and inflows , were in fact mistakenly showing world FDI 
inflows/outflows.  The corrected  sentences are corrected below. 
 
In paragraph 49 of the Government's report, it shoul d read: "the main destinations of EU FDI 
outflows were the US (€79 billion), EFTA countries (€46 billion), Switzerland (€44 billion) followed by Brazil, South Africa and China.  On the other ha nd, EU FDI inflows originated from the US (€97  
billion), EFTA countries (€29 billion), Switzerland ( €25 billion), Canada (€11 billion), followed by 
Australia and Latin America." 
 
We would invite the WTO Secretariat to take not e of these corrections when circulated a revised 
version of this report. 
 
Question 51  
In its report, the EU suggests th at NAMA liberalization in the Doha  Round would also be beneficial 
to South-South trade.  Would the EU agree with the proposition that South-South non-agricultural trade may be better served by preferential arrange ments between developing countries, which would 
not have to compete in each other´s markets with exports from major  developed  Members? (Section   
3.2). 
 
Answer 
The EU considers an ambitious NAMA result to be in the interest of developing countries as most 
duties are paid by importers from developing coun tries on imports from other developing countries. 
Increasing South-South trade could theoretically al so be reached by preferential arrangements 
between developing countries, but  this would be at the cost of significant trade diversion, as 
developing countries would shield themselves from imports of developed countries.  Also, tariff 
reduction initiatives between developing countries (such as GSTP) are so far very modest in 
coverage, reduction and participation and can hardly be considered an alternative to multilateral 
liberalization.  The question of preferential lib eralization between developing countries is also 
complicated by the  very large difference in co mpetitiveness between some of the emerging economies WT/TPR/M/248/Add.1 
Page 94  
 
 on the one hand and much poorer or less compe titive groups of developing countries on the other 
hand.  In some cases developing countries also see m to be more concerned about competition from 
rapidly growing emerging countries than from the tr aditional "developed" economies.  In this context, 
substantial preferential liberalization between a ll "developing" countries would not seem to be a 
realistic perspective. 
 
Question 52  
The EU advocates the liberalization of trade in environmental goods and services. Since it has also 
adopted legislation concerning the use of biofuels  in the transport sector (Directives EC/2009/28 and 
EC/2009/30) that is linked to environmental targ ets and environmental performance (sustainability 
criteria) of different types of feed stocks for producing biofuels, would the EU agree that those 
biofuels that contribute to mitigate the emis sion of greenhouse gases should be considered 
environmental goods?  (Section 3.6.1).  
 
Answer 
The environmental profile of biofuels is dependent on a number of factors including "the feed stocks 
used, the mode and place of production, the agricul tural practices involved and the relevant policies 
in place" (Decision IX/2 adopted by the IX Conf erence of the Parties of the Convention on Biological 
Diversity).  Those and other facto rs determine the extent to which biofuels production and use may 
have positive or negative environmental impacts,  including in terms of the conservation and 
sustainable use of biodiversity and the reduction of  greenhouse gas emissions.  The potential to 
reduce greenhouse gas emissions is but one of the elemen ts that need to be taken into account in the 
context of an environmental assessment of biofuels.  The identification and treatment of products that ma y be characterized as "environmental" for WTO 
purposes is a matter subject to negotiations und er the Doha Development Agenda.  The EU looks 
forward to discussing in the appropriate context Br azil's views on the possible characterization of 
products that contribute to mitigate the emi ssion of greenhouse gases as environmental goods. 
 Question 53 
In January 2012 the EU will apply the rules of its Emissions Trading System (EU ETS) to the 
international aviation sector.  The application of th is EU regulation to non-EU companies has raised 
concerns regarding compatibility with interna tional agreements, including the GATS, the United 
Nations Framework Convention on  Climate Change and its Kyoto Protocol and the Chicago 
Convention.  Does the EU intend to expand the app lication of its ETS to the international aviation 
sector and seek to apply carbon-related ta xes to other sectors?  (Section 3.6.1). 
 
Answer 
While noting that the EU Emission Trading System (ETS ) is not a trade measure, the EU is pleased to 
have an opportunity to further expla in this system and the inclusion of aviation into it.  The EU 
Emissions Trading Scheme star ted in 2005 and covers both industr ial and energy installations 
specified in Annex I to the Directive 2003/87/EC.  Directive 2008/101/EC amended this Directive by 
including aviation into the scheme.  The inclusion of aviation in the EU Emission Trading Scheme is 
therefore established EU legislation in force si nce February 2009 and is in the process of being 
implemented.   The EU Emission Trading Scheme cannot  be regarded as a carbon-related tax, but as an integral part 
of a "cap and trade" system. 
 
Question 54 
The report states that the EU is "examining closely the certification of natural resource based products 
and voluntary/private labeling".  Indeed, the EU h as already adopted climate and energy policies that 
impose certification and sustainability criteria to th e production and trade in the  sector of biofuels WT/TPR/M/248/Add.1 
Page 95 
 
 
  (Directives EC/2009/28 and EC/2009/30).  Market operators are already claiming that this regulation, 
in force since April 2009, is causing barriers to the tr ade of biofuels to the EU.  Does the EU intend to 
notify these measures to the WTO?  Does the EU inte nd to apply similar envi ronmental sustainability 
criteria and mandatory certification to other sectors, in  particular in the agricultural  sector?  (Section 
3.6.1).  Answer 
There is comprehensive public information on Directives EC/2009/28 and EC/2009/30 that WTO Members can easily access to.   
The need to formally notify domestic measures to the WTO is to be assessed on the basis of existing 
notification requirements and decisions.  The EU's assess ment as regards the need to notify Directives 
EC/2009/28 and EC/2009/30 is based on those requirem ents and decisions.  Brazil may wish to 
elaborate in the appropriate forum on whether in Br azil's view the EU has overlooked some specific 
notification requirement. 
 
The provisions on biofuels under Directives EC/2009/28 and EC/2009/30 are specifically designed 
for the purposes of determining the appropriate treatm ent of those products in the context of the EU 
policies for the promotion of renewable energy sou rces and the reduction of emissions from fuels.  
The EU has currently no plans to replicate the sa me approach in other areas.  This is without 
prejudice to the objective of integrating sustain ability considerations in the design of other EU 
policies and measures, as appropriate. 
 Question 55 
- In order to obtain full authorization from the European Commission, allowing them to operate as 
certifiers of biofuels to the European market, in th e context of the implementation  of  the Renewable 
Energy Directive (EC/2009/28), the approved "volun tary certification schemes" had to exclude the 
possibility of expansion of produc tion of biofuels in any kind of  non-natural grassland, including 
pasture land, with the alleged purpose of protectin g "highly bio diverse grassland" areas (Article 
17.3.c of Directive EC/2008/28).  Could the EU indicat e if this measure is based on any technical and 
scientific definition, studies or international agreem ents?  If so, please identify.  Please explain further 
how this measure could be compatible with the WT O principle that like products should be treated 
equally.  (Section 3.6.1).  
 
Answer 
The Commission has yet to specify detailed rule s for the application of the "highly bio diverse 
grassland" criterion.  Therefore, the Commission has indicated to those entities having submitted 
voluntary schemes to the Commission that they have the option of not asking for recognition of their 
schemes on this specific point.  Voluntary schemes may however go further than the EU sustainability 
criteria in terms of their coverage or the stringenc y of the criteria.  When developers of voluntary 
schemes themselves choose not to certify under th eir schemes biofuels from areas that were 
previously grassland (of any kind), the Commission obviously can recognize that the scheme does not 
include biofuels from areas that were highly bio diverse grassland.  This course of action does not 
give rise to any unjustifiable discrimination between WTO Members.  
 Question 56 
In order to qualify for the tax-excise exemption for bi ofuels and to be eligible  towards national targets 
stipulated by the RED Directive (EC/2008/28), the greenhouse gas savings of biofuels must be higher 
than 35%.  This threshold will be raised to 50% in 2017 and to 60% for refineries beginning 
operations in 2017 and beyond.  The "default values" est ablished in the regulation to all feed stocks  
used in biofuels production seem to be particularly  disadvantageous to those which are not produced 
in the EU, such as soy bean oil (31%) and palm oil (19%).  Please inform how the calculation of the 
default values of different feed stocks by the EC were done and if they have been submitted to peer WT/TPR/M/248/Add.1 
Page 96  
 
 review. Please explain how this measure could be  compatible with the WTO principle that like 
products should be treated equally.  (Section 3.6.1).  
 
Answer 
Note that one of the highest default values is for ethanol from sugar cane whic h is not produced in the 
EU.  The calculation of the default values is exp lained in the "Communication from the Commission 
on the practical implementation of the EU biof uels and bio liquids sustainability scheme and on 
counting rules for biofuels" (OJ 2010/C 160/02)).  The default values do not give rise to any unjustifiable discrimination between WTO Members.    
Question 57 How does the EU intend to monitor and verify  land use and biodiversity protection in non-EU 
Members, when applying the sustainability crite ria listed in Article 18 of the RED Directive 
(EC/2008/28)?  Would the EU agree that this is a part icular case for further clarification in the context 
of the  relationship between the WTO and Multilate ral Environmental Agreements  (MEAs)? (Section 
3.6.1). 
 
Answer 
Verification of compliance with the EU sustainability criteria involves an adequate standard of 
independent auditing.  The Commission  has already presented further clar ification on this point in the 
"Communication from the Commission on voluntary sch emes and default values in the EU biofuels 
and bio liquids sustainability scheme" (OJ 2010/C 160/01).  Verification of compliance with EU 
domestic regulations would not seem to be a topic related to the relationship between WTO rules and 
Multilateral Environmental Agreements, but Brazil ma y consider providing additional explanations 
on its thinking in the appropriate WTO fora.   
WT/TPR/S/248 
 Question 58 
Could the EU please explain why certain trade agreem ents take the form of "mixed agreements" and 
others do not?  Does the decision to conclude a trade agreement as a "mixed agreement" involve any level of discretion on the part of EU authorities?  (Section II.1).  
 Answer 
Whether trade agreements are mixed depends on wh ether the content of the agreement goes beyond 
the legal competence of the EU.  If that is the ca se, then they must be concluded as mixed agreements. 
There is no political discretion in the matter. 
 
Question 59 
Could the EU please clarify which trade agreemen ts recently concluded by the EU are "mixed 
agreements" and which are not?  Could the EU plea se explain which provisions of those agreements 
require them to take the form of "mixed agreements"? (Section II.1). 
 
Answer 
The EU-Korea FTA is a mixed agreement, as is  the EU-CARIFORUM EPA, in both cases as a 
minimum because of provisions on cultural co-op eration.  The Geneva Agreement on Bananas is an 
example of an EU exclusive agreement.  
Question 60 Are there any rules or guidelines at EU level regard ing how long Member States should take to ratify 
"mixed" trade agreements?  On average, how long does it take for Member States to ratify "mixed" 
trade agreements?  (Section II.1).  
 WT/TPR/M/248/Add.1 
Page 97 
 
 
  Answer 
There are no rules on how long Member States should take to ratify agreements.  Normally 2 to 3 
years are required, but the time period may be longer or shorter. Question 61 
Article 13 of Regulation No 732/2008  established the conditions for the "graduation" of sections of 
products the exports of which have exceeded certain  thresholds over three consecutive years. Such 
graduation, based on data availa ble on 1 September 2007, should  apply until 31 December 2011, 
when the Regulation was due to expire.  Does Regul ation No 512/2011, which amends Regulation No 
732/2008, provide for a reassessment of the graduate d sections, based on more recent trade data?  
When does the EU intend to conduct su ch reassessment?  (Section II.4(i)). 
 
Answer 
Regulation (EC) No 512/2011 amending Regulat ion (EC) No 732/2008 covers purely technical 
changes which are necessary for th e extension of the validity of the current GSP to 31 December 
2013.  The review of the graduation list will take pla ce at the time the success or GSP Regulation is 
adopted by the European Parliament and the Council.  
Question 62 
Does Regulation No 512/2011 provide for appropriate pr ocedures  for  a Member to request to the EU 
the "degraduation" of graduated sections under th e GSP, based on more  recent  data?  (Section 
II.4(i)). 
 
Answer 
Regulation (EC) No 512/2011 ame nding Regulation (EC) No 732/2008 does not provide for a review 
of the graduation list established under Regulation (EC) No 732/2008.  The current Regulation, 
including the graduation list, has been extended to 31 December 2013.   
 
Question 63 Please provide a list of sections, of each beneficiar y country, which would re main graduated if the 
most recent trade  data  available was used. (Section II.4(i)).  
Answer 
Please refer to the publically availabl e information under the following link: 
http://ec.europa.eu/governance/impact/ia_c arried_out/docs/ia_2 011/sec_2011_0536_en.pdf. 
The requested information can be found in Ann ex 6, Table 6-1, page 47 of the Commission Staff 
Working Paper impact assessment, Vol. II.  
 Question 64 
In March 2011, the European Commission presented a proposal to reform the EU GSP system.  Can 
the EU please explain how the income criteria proposed  to qualify the GSP beneficiaries conforms to 
the requirements of the Enabling Clause? (Section II.4(i)).  
 
Answer 
The income criteria suggested in the European Commission proposal are based on internationally 
accepted and widely used indicators.  They refle ct trade, financial and development needs in full 
compliance with the Enabling Clause.   Question 65 
If one of the aims of the proposal, according to  the European Commission, is to increase export 
opportunities for countries most in need by reducin g competitive pressures from developing countries 
considered "more advanced", how does the EU explain that most of the current beneficiaries that will 
be affected by the proposed income criteria ha ve very few sections graduated under the current 
scheme?  (Section II.4(i)).  
 WT/TPR/M/248/Add.1 
Page 98  
 
 Answer 
Graduation is one of the areas that has also been  reviewed in the EU Commission's proposal because 
the current mechanism fails to prop erly identify competitive sectors.  
 Question 66 
With the application of the proposed income criteria , based on current data, only one of the five main 
users of the GSP will cease to be a beneficiary of  the general scheme. Under these circumstances, to 
what extent will the proposed changes effectively in crease the export opportuniti es to "less advanced"  
developing countries?  (Section II.4(i)).  
 
Answer 
The extensive preparatory analysis by the Europe an Commission has demonstrated  the significant 
competitive pressure exerted by su ch countries on less advanced exporters.  In addition, the volumes 
of exports involved under the GSP scheme (see ne xt question) are significant—in particular if one 
considers that a marginal export volume for larg er beneficiaries can cover manifold the exports of 
tens of the less advanced countries. 
Question 67 
Based on current data, the Commission has indicated that 21 countries would lose their status as 
beneficiaries of the GSP as a result of the applicati on of the proposed income criteria.  Please inform 
how much the imports under the GSP from those 21 countries accounted for as a percentage of total 
imports under the GSP in 2010.  (Section II.4(i)).  
 
Answer 
Preferential imports from such countries account  for around 30% of total preferential imports under 
the GSP in 2009.   
Question 68 Following the entry into force of the new "comito logy" rules, does the Comm ission expect to see an 
increase in the use of trade defense instruments?  (Section III.1(iv)). 
 
Answer 
The new comitology rules do not change any of the substantive conditions for the application of trade 
defense measures. In practice Regulation (EU)  No 182/2011 laying down the rules and general 
principles concerning mechanisms for control by  Member States of the Commission's exercise of 
implementing powers ("the Comitology Regulation" ) has shifted the power for adopting implementing 
acts (such as the adoption of definitive AD and CV  measures) from the Council to the European 
Commission.  That means that trade remedy inves tigations will still be conducted by the Commission 
but that trade remedy measures will be applied by the Commission instead of the Council.  However, 
the Comitology Regulation foresees that the Co mmission's exercise of implementing powers will be 
subject to control by the Member States through it s Article 8 for provisional measures and through 
the examination procedure for definitive measures.  
 
Question 69 
To what extent do the new "comitology" rules ma ke it easier for the Commission to adopt trade 
defense measures?  (Section III.1(iv)).  
 
Answer 
Prior to Regulation (EU) No 182/2011 laying dow n the rules and general principles concerning 
mechanisms for control by Member States of the Commission's exercise of implementing powers ("the 
Comitology Regulation"), the Council had the po wer to adopt implementing acts (such as the 
adoption of definitive AD and CV measures).  The Co mitology Regulation has shifted the power for 
adopting implementing acts (such as the adoption of definitive AD and CV measures) from the 
Council to the European Commission.  However, the Comitology Regulation foresees that the WT/TPR/M/248/Add.1 
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  Commission's exercise of implementing powers will be subject to control by the Member States 
through its Article 8 for provisional measures and through the examination procedure for definitive 
measures.   Until the basic anti-dumping and anti-subsidy Regulati ons are aligned to the Comitology Regulation, 
the Council will continue to have the power to adopt  definitive AD and CV measures.  In order to 
align the basic anti-dumping and anti-subsidy Regul ations to the Comitology Regulation, the 
Commission has made a proposal to the European Parliament and Council (the co-legislators) on 
7 March 2011 for a Regulation amending certain re gulations relating to the common commercial 
policy as regards the procedures for the adoptio n of certain measures (COM(2011) 82 final of 
7.3.2011, 2011/0039 (COD)) ("the Omnibus proposal").  The discussions within the co-legislators are 
still at an early phase and therefore it is not yet cl ear when the Omnibus proposal will be adopted. 
 This change to the procedures for the adoption of  AD & CV measures came about following the entry 
into force of the Treaty of Lisbon which has c hanged the framework for adoption of implementing 
acts.  The provisions of the Treaty on implementi ng acts, which are set out in Article 291, confer 
implementing powers onto the Commission and do not pr ovide any role for the European Parliament 
and the Council to control the Commission's exercise  of implementing powers. Such control can only 
be exercised by the Member States. Article 291 of  the Treaty also required the adoption of a 
regulation to establish the mechanisms of such contro l.  In order to comply with such a requirement 
the European Parliament and the Council adop ted Regulation (EU) No 182/2011 laying down the 
rules and general principles concerning mechan isms for control by Member States of the 
Commission's exercise of implementing powers ("the Comitology Regulation").  Question 70 
In June 2011, the European Commi ssion launched public consultations as part of a process aimed at 
adopting new legislation to regulate the access of foreign providers to the EU government 
procurement market.  One of the alleged objectives of  this initiative is to bring more symmetry to the 
level of market access enjoyed by foreign providers in the EU market, vis-à-vis the level of market 
access enjoyed by European providers in othe r Members" government procurement markets. 
Considering that current EU rules on government pr ocurement already allow for restrictions to other 
Members" providers when those Members do not have an agreement with the EU, why does the 
Commission consider that new legislation on th is matter is necessary?  (Section III.3(iv)). 
 
Answer 
The EU procurement regime is designed to secure tr ansparency as well as a level of competition that 
both stimulates businesses and delivers savings for public  authorities.  The EU has been traditionally 
an advocate for open procurement markets and to this  aim it took large commitments in the WTO 
GPA and it intends to expand them during th e on-going GPA review and through bilateral 
agreements with comprehensive proc urement chapters.  There are no "Buy European" policies in the 
European Union and there is no EU-wide prohib ition against the purchase of foreign goods or 
services. Also, foreign goods or services are neither subject to additional constraints such as  
preferential (set aside) regimes in favour of Europe an SMEs or any similar measures.  Only Articles 
58 and 59 of Directive 2004/17 (the so-called "utilities" Directive) introduce a mechanism allowing, 
under certain circumstances and only in the area of utilities, to restrict access for products 
originating in third countries,  with which the EU has not concluded an agreement ensuring 
comparable and effective access.  
The EU's open approach to trade in the area of  government procurement is not entirely shared 
worldwide to the disadvantage of the EU compani es.  The EU is currently considering proposing a 
new legislative instrument relating to the access to the European Union's procurement market by 
suppliers, goods and services from outside the EU.  The underlying idea behind the legislative instrument is not to discriminate, but to clarify  the conditions of access to the EU procurement WT/TPR/M/248/Add.1 
Page 100  
 
 market.  To this end, the real conditions of access of EU companies to third countries (with or without 
international agreement) will be analyzed.  
 
This new legislation would aim at re-balancing speci fically those situations where there is a clear gap 
between the actual access conditions of third coun tries, goods and services to  the EU's procurement 
market (either on the basis of mutually agreed co mmitments or given the de facto openness of the 
EU's market beyond the negotiated commitments) and the lack of substantially reciprocal access of 
EU bidders to that particular third country's procu rement market.  Potential restrictions would only 
be considered when opening cannot be envisaged with specific tradi ng partners through negotiation.  
 
The content of the future legislative proposal is yet not defined and will largely depend on the 
outcome of the impact assessment.  The analysis of  the replies to the referred consultation will 
contribute to that analysis.   
Question 71 
In May 2011, the European Commission presented a proposal to review Regulation EC 1383/2003. 
How does that proposal address concerns raised by so me Members in relation to the apprehension or 
detention of generic medicines in transit th rough the EU territory?  (Section III.3(vi)). 
 
Question 72 
According to the rules of interpreta tion of the European Court of Justice, what is the legal value of the 
"recitals" or "consideranda" of an  EU Regulation? (Section III.3(vi)).  
 Question 73 
Are the EU administrative and judicial authorities bound by provisions included exclusively in the 
"recitals" or "consideranda" of an EU Regulation? (Section III.3(vi)). 
 
Question 74 Does the proposal determine that customs authorities do  not have the authority to apprehend or detain 
generic medicines in transit through the EU territory? (Section III.3(vi)).  
 
Answers to questions 71-74 
The European Commission proposed on 24 May 201 1 a new regulation which will replace Regulation 
EC 1383/2003.  With regard to the concerns raised  by some WTO Members, it is important to 
emphasize that the European Commission had already addressed those concerns including by working with Member States and industry on the basis of Council Regulation EC 1383/2003.   The proposal for a new regulation does respond to tho se concerns as well, by further clarifying that 
the customs Regulation is of a procedural nat ure, and that it does not change or add to the 
substantive laws defining an IPR infringement.  The proposal has notably also removed the recital 8 
of Regulation 1383/2003, which had created uncertai nty in the past, and has added a new recital 
underlining the importance of a smooth flow of gen eric medicines in transit.  The proposal also 
includes language requiring adequate evidence for customs authorities to detain goods that more 
closely follows TRIPS  language.  A number of procedural impr ovements that respond to the concerns 
expressed by other WTO Members have also been incorporated with regard to detention and 
destruction procedures. In sum, the Commission has already addressed the issues that gave rise to certain instances of 
detention in the past. No new such detentions  have occurred, and we are clarifying our legal 
framework to add further certainty through th e review of Council Regulation 1383/2003. 
 
With regard to the value of recitals in EU law,  the EU recalls that Council Regulation 1383/2003 has 
been challenged in the context of an on-going WTO dispute, and notes that it has responded to 
questions by the complainants on this and other matt ers.  As explained in that context, pursuant to WT/TPR/M/248/Add.1 
Page 101 
 
 
  Article 296 of the Treaty on the Functioning of th e EU, legal acts adopted by  EU institutions shall 
state the reasons on which they are based.  Those reasons are given in the recitals (or "cosideranda") 
in the preamble part of the act.  In so far as they set out the rea sons, purposes and objectives of the 
provisions contained in the opera tional part of the legal acts, the preamble thus provides essential 
elements for the interpretation of such provisions.  It is common for the European Court of Justice – 
the only EU institution that can provide authoritative in terpretation of EU law - to refer to the recitals 
when interpreting the meaning of partic ular provisions of an  EU legal act. In sum, recitals can inform 
the interpretation of provisions in the operative part of a legal act.  With regard to the role of customs authorities,  the EU recalls that the system established under 
Council Regulation 1383/2003 is primarily intended as an instrume nt to enable the right holders to 
initiate proceedings to determine whether an intell ectual property right has been infringed.  The 
determination of whether goods in transit constitute "goods infringing an in tellectual property right" 
belongs to judicial authorities in the EU in a ccordance with the relevant substantive intellectual 
property laws, which in the case of patents will in deed be Member State patent laws.  EU customs 
authorities have the right to control all goods in any of the situations referred to in Article 1(1) of the 
Regulation.  Customs authorities are required under the Regulation to have enough grounds for suspecting an infringement of intellectual property rights in order to detain the relevant goods under 
their supervision.  The new proposal requires that th ey are satisfied on the basis of adequate evidence 
that there is prima facie an infringement.  The pr oposal further underlines the importance of a smooth 
flow of generic medicines in transit. 
 
Question 75 
After the "Escherechia coli" crisis in the EU, th e European Commission decided to grant 210 million 
euros for producers who suffered trade losses.  Suppor t for fruits and vegetables in the EU is provided 
through producer organizations and their operationa l programmes, and include crisis prevention and 
management measures such as market withdrawal (w here products are withdrawn from the market);  
non-harvesting (where no commercial produce is take n);  and green harvesting (total harvesting of 
non-marketable products before normal harvesting).  Could the EU please indicate whether the funds 
provided in response to the "Escherechia coli" crisis ar e part of the regular crisis management funds or 
are above and beyond those progr ammes?  (Section IV.1(iii)).  
 
Answer 
The measures undertaken in response to the E. coli crisis are to be funded under existing mechanisms 
within the CAP.  Details concerning their implem entation will be publicly available in due course. 
 Question 76 
Paragraph 32 of document WT/TPR/G/248 makes refe rence to the "Safety and Security Amendment" 
to the EU Customs Code, which was introdu ced by Regulation 648/2005 and its implementing 
Regulation 1875/2006.  Pursuant to the amendments , before goods leave or enter the EU, relevant 
security data have to be sent to EU customs author ities in advance.  How can the EC ensure that the 
new rules will not constitute barriers to trade? 
Answer 
The new rules allow Customs administration to improve the application of risk management thus 
allowing sufficient time for the deployment of res ources away from legitimate cross border trade to 
high risk consignments.  This together with the be nefits afforded to traders joining the EU AEO 
program will offset any potential barrier to trade.  
Question 77 How is the "Safety and Security Amendment" to  the EU Customs Code in line with the World 
Customs Organization's (WCO) SA FE Framework of Standards, adopted by the WCO Council in 
June 2005? WT/TPR/M/248/Add.1 
Page 102  
 
 Answer 
The EU has undertaken a gap analysis on the stand ards laid down in SAFE Framework of Standards 
and the EU Security Amendments to the EU Custom s Code and its Implementing Provisions to ensure 
that they are fully compliant with SAFE.  Furt hermore, the WCO has recognized that the EU is 
meeting the requirements of SAFE following a deta iled analysis of a WCO questionnaire sent to all 
countries and Customs unions (e.g. EU) several years ago. 
 Question 78 
Paragraph 77 of document WT/TPR/G/248 menti ons that the EU actively promotes the 
implementation of effective standards for IP protecti on and enforcement world-wide.  It also says that 
the EU continues its pursuit of the full implemen tation of the standards set out by the WTO TRIPs 
Agreement.  Please clarify which measures were ta ken/are being taken in order to guarantee "the 
transfer and dissemination of technology, to th e mutual advantage of producers and users of 
technological knowledge and in a manner conducive to social and economic welfare, and to a balance 
of rights and obligations", as stated in  Article 7 the WTO TRIPs Agreement? 
Answer 
The EU is always mindful of its obligations vi a the TRIPS Agreement, especially with regard to 
developing countries.  All the EU's trade agreements include a provision on the transfer of technology 
except for where the partner country is of a similar level  of economic development.  The EU reports to 
the WTO regularly about its (the EU Commission and the 27 Member States) technology transfer activities in the world.  Specific informatio n can be found on the following website: 
http://ec.europa.eu/trade/creating-opportunities/trade -topics/intellectual-property/technologytransfer.  
 In certain countries, the EU faces obstacles to its  programme of transfer of technology.  These 
problems are addressed in bilateral dialogues with th e country concerned in an  attempt to allow the 
flow of technology to local enterpri ses that need to benefit from it. 
 
Question 79 
Paragraph 91 of document WT/TPR/G/248 says that th e EU seeks free trade ag reements which are – 
in line with the letter and the spirit of the WTO Ag reements – comprehensive in scope and deep in 
terms of level of commitment, in both goods and se rvices.  How can the EC ensure that chapters on 
intellectual property rights are in line with the WTO TRIPs Agreement and take into consideration 
flexibilities granted to developing countries? 
Answer 
The EU gives great importance to the WTO TRIPS Ag reement and abides fully by it.  The texts of the 
Free Trade Agreements of which the EU is a partner all contain provisions explicitly indicating that 
the FTA must comply with the rights and obligations set out in the TRIPS Agre ement.  Moreover, for 
example, the EU's FTA's have articles on the transf er of technology and cooperation as well as a 
provision referring to access to medicines in acco rdance with the Doha Declaration of the TRIPS 
Agreement and Public Health, notably through compulso ry licensing.  At the same time, Article 1.1  
TRIPS explicitly allows WTO Members  to implement more extensive protection than required in the 
Agreement.  It is on this basis that, in a numb er of provisions, the EU and its FTA partners agree to 
build-upon TRIPS. 
 
General questions 
 Question 80 
Will the eventual adoption of the Anti-Counterfeit Trade Agreement require any changes in the EU 
legislation? WT/TPR/M/248/Add.1 
Page 103 
 
 
  Answer 
No, the ACTA provisions are in line with current EU legislation and no changes are therefore 
required.  
 Question 81  
In May 2011, the EC presented a proposal to review Regulation EC 1383/2003. Under the proposed 
regulation, the law of each EU member state w ill continue to apply concerning alleged infringed 
goods.  The revised Regulation EC 1383/2003 will prevail over the law of each EU member state? 
How can the EC ensure that an in-transit medicine  that was legally produced in the country of 
manufacture and destined for legal use in the final country of import will not be seized?  
 Answer 
Regulations are one of the types of legal acts  through which the EU exercises its competences. 
According to Article 288 of the Treaty on the Func tioning of the EU, a regulation shall have general 
application, it shall be binding in its entirety, and be directly applicable in all Member States.  This 
means that regulations are binding on all Member States, EU institutions and individuals, and that 
they apply without the need for any implementing meas ure to incorporate them into the legal systems 
of Member States.  
With regard to the detention by customs authorities of goods in transit thr ough EU territory, it is 
important to recall that the system of border meas ures as established under Regulation 1383/2003 is 
primarily intended as an instrument to enable the right holders to initiate proceedings to determine 
whether an intellectual property right has been infr inged.  The determination of whether goods in 
transit constitute "goods infringing an intellectual  property right" belongs to judicial authorities in 
the EU in accordance with the relevant substanti ve intellectual property laws, which in the case of 
patents will indeed be Member State patent laws.  The system of border measures in place requires 
customs authorities to have enough grounds for susp ecting an infringement of intellectual property 
rights in order to detain the relevant goods under thei r supervision.  In this context, it should be noted 
that the mere fact that goods are in transit thr ough EU territory, and there is an intellectual property 
right title applicable to such goods in the EU terr itory, does not in itself c onstitute enough grounds to 
determine that the products at stake infringe those rights.  
 
Question 82 
The EC recently declared its intention to create a system of registering and protecting geographical 
indications for non-agricultural products, based on alle gations that the absence of such a system leads 
to an unlevel playing field in the Single Market.  It is known that a study on this issue was commissioned by DG Trade.  Is there any conclusion so far on the potential impact of creating a GIs system for non-agricultural products? And how does the absence of such a system  lead to an unlevel 
playing field in the Single Market?  
 
Answer 
As mentioned in the question from Brazil, a st udy on the protection of GIs for non-agricultural 
products had been commissioned by the Directorate General for Trade.  The vi ews expressed in this 
study are those of the contractors and do not represent any official views of the European 
Commission.  The European Commission announced in its Communication adopted on 24 May 2011 
entitled "A Single Market for Intellectual Property Rights Boosting creativity and innovation to provide economic growth, high quality  jobs and first class products and services in Europe" that it is 
about to launch a feasibility study on the issue of GIs protection for non-agricultural products in the 
internal market.  The study will notably provide an analysis of existing legal frameworks in the 
Member States, an in-depth assessment of stake holders" problems and needs and the potential 
economic impact of protection for non-agricultural GIs.  Drawing on the results of this work, 
following further reflection and comprehensive evidence gathering,  the European Commission will 
decide on an appropriate way forward, including the possible creation of a new EU title for such 
protection. WT/TPR/M/248/Add.1 
Page 104  
 
 Question 83 
In the recently disclosed document "A Single Ma rket for Intellectual Property Rights Boosting 
creativity and innovation to provide economic growth , high quality jobs and first class products and 
services in Europe", the EC mentions that the EU w ill continue to negotiate IPR provisions in its free 
trade agreements with third countries and that IP R clauses should as far as possible offer identical 
levels of IPR protection to that existing in the EU  while taking into account the level of development 
of the countries concerned.  Does the EC have any impact assessment  study showing how such a level 
of IPR protection would benefit third countries, specially developing ones?  
Answer 
Before embarking on comprehensive trade negotiations on a bilateral or regional level, the European 
Commission contracts out the compiling of a Trade sustainability Impact Assessment (SIA).  These 
SIA are carried out by external consultants and are available to the public at the following web address:  http://ec.europa.eu/trade/analysis/su stainability-impact-assessments/assessments/. 
The aim of these SIA studies is to integrate sustai nability into European trade policy. Issues covered 
by the SIA are notably the possible social, envir onmental and economic consequences of the proposed 
trade agreement. The SIA also contain guidelines on possible preve ntive, mitigation and enhancement measures to 
maximise the positive impact and to reduce the negati ve impact of the trade negotiation in question be  
it with a developed or developing country.  
Question 84 Since November 2010, the EU has adopted several me asures in connection with the supply of sugar in 
the EU market during the marketing years 2010/ 11 and 2011/12.  Please identify the measures 
adopted by the EU since November 2010, in par ticular those related to sugar import and export 
authorizations, and explain the reasons for their adoption. 
 
Question 85 
Taking into account the export authorizations  granted for MYs 2010/201 1 and 2011/2012, please 
inform the level of sugar exports expected for both periods. 
 
Answer to questions 84 and 85 
1) Measures regarding imports  - MY 2010/2011:  
Commission Regulation (EU) No 1100/2010 reduced the 98 €/t import duty to zero in the case of CXL import tariff quota with order numbers 09.4317, 09. 4318, 09.4319 and 09.4320 until 31 August 2011. 
Commission Implementing Regulation (EU) No 302/2011 opened an exceptional import tariff quota 
for 300 000 t of sugar at zero import duty. Commission Implementing Regulation (EU) No 589/2011 increased the exceptional import tariff quota (Commission Implementing Regulation (EU) No 302/2011) by an additional 200 000 t. Commission Regulation (EU) No 396/2010 opened a TRQ for 400 000 t of sugar at zero duty for the 
supply of the chemical industry. 
Commission Implementing Regulation (EU) No 634/2011 opened a standing invitation to tender for 
the 2010/11 marketing year for imports of sugar of CN code 1701 at a reduced customs duty. 
 - MY 2011/2012: 
Commission Implementing Regulation (EU) 380/2011 opened a duty-free import TRQ for 400 000 t of 
sugar at zero duty for the supply of the chemical industry. 
 These measures were taken to increase the sugar su pply on the EU market, notably in view of high 
world market prices. 
 WT/TPR/M/248/Add.1 
Page 105 
 
 
  2) Measures regarding exports 
- MY 2010/2011: 
Commission Regulation (EU) No 397/2010 fixed the quantitative limit for out-of-quota exports at 650 000 t for sugar and 50 000 t for isoglucose. Commission Implementing Regulation (EU) No 461/ 2011 increased the quantitative limit for out-of-
quota sugar exports by 700 000 t to 1 350 000 t. 
 - MY 2011/2012: 
Commission Implementing Regulation (EU) 372/2011 fixed the quantitative limit for out-of-quota exports at 650 000 t for sugar and 50 000 t for isoglucose. 
 
These quantitative limits have to be fixed per ma rketing year in line with the EU WTO export 
commitments for export of sugar.  Question 86 
Given the evolution of the international sugar ma rket and the supply constraints in the European 
market, does the EU envisage an early reform of its sugar regime?  
Answer 
The provisions of the 2006 sugar reform are va lid until the end of the 2014/2015 marketing year. 
Before the end of 2011 the Commission will table its proposals concerning the future of the CAP.  
 
Question 87 
According to the European Commission, the princi ple of regionalization is applied to Brazilian 
exports of bovine fresh meat.  Furthermore, on paragraph 107, pa ge 57 of document WT/TPR/S/248 it 
is stated that "regarding animal health and food  of animal origin, the Commission indicates that EU 
legislation is largely based on OIE/Codex recommend ations, standards, and guidelines."  Could the 
EU therefore please explain why the imports of such  products from regions of Brazil considered as 
free of food and mouth disease with vaccination ha ve to be deboned and maturated when those 
requirements, according the recommendations of the OIE (Article 8.5.25 of the Terrestrial Animal Health Code), should be applied to the exports of areas infected by food and mouth disease?   Answer 
The EU has always stated that this is a point  where EU requirements go beyond the OIE standards. 
The EU level of protection against FMD is very high, as demonstrated by the very stringent measures 
that are taken to regain the "free without vaccinat ion" status when FMD outbreaks occur in EU 
Member States. FMD is endemic in some areas of Brazil and vaccination is applied widely.  The EU 
policy is risk-based, consistent and non-discriminat ory as EU applies it to all countries free of FMD 
with vaccination, not just Brazil.  The EU policy is  supported by the European  Food Safety Authority 
(EFSA) scientific opinion of 2006.  The EU believes t hat EU measures are fully in line with the SPS  
agreement, as they are science based  and they are necessary to achieve th e desired level of protection 
against this disease. See the website at: http://ec.europa.eu/food/international/organizations/oie_en.htm. 
And the EFSA opinion at: http://www.efsa.europa.eu /cs/BlobServer /Scientific_Opinion /ahaw_op_ej313_fmd_en1.pdf?ssbinary=true . 
 
KOREA I 
 
Question 1 - Secretariat Report, page 80, paragraph 193  
In 2008, 85% of the notices of intended procuremen t were followed by a contract award notice. Why 
was the remaining 15% not followed by a contract award notice?  WT/TPR/M/248/Add.1 
Page 106  
 
 Answer 
The EU monitors the obligation to publish the contra ct award notice very strictly.  Therefore, it had 
established a system of monitoring, including reminders to contracting authorities.  It results that the 
15% per cent difference is caused either by cancel lations of tender procedures or the contract in 
question was awarded in the following calendar year.  For obvious reasons, the statistics are 
prepared for a calendar year.  (Example:  A cont ract award notice of a tender launched in December 
2010 will be only published in 2011 as it will be only awarded that year.)  
 Question 2 - Secretariat Report, page 80, paragraph 195 
How is the coverage of the GPA different fro m that of the relevant EU Directives?  
 
Answer 
The EU PP procurement directives have larger co verage:  All central procurement entities are 
covered (for procurement above the threshold), the Di rectives do not operate with a closed list as it is 
the case for the EU Annex 1 in the GPA.  In the domain of utilities, also privately owned companies 
that enjoy "a special and exclusive right" are cov ered by the provisions of the Utilities Directive 
(2004/17/EC).  In comparison to the EU's current commitments, the category of railway procurement 
and the area of exploration for, or extraction of oil,  gas, coal or other solid fuels is covered by the 
provision of the Utilities Directive.  The Directive 2004/18/EC covers also the domain of public works 
concessions.  Additionally, the Directive 2009/81/EC on Defence and Security Procurement sets EU 
rules for the procurement of arms, munitions and war material (plus related works and services) for 
defence purposes, but also for the procurement of sensitive supplies, works and services for security 
purposes.  
 
Question 3 - Secretariat Report, page 82, paragraph 202 
The Commission's evaluation suggested that less th an 5% of the total procurement budgets were 
awarded through electronic systems in 2010.  Why was the use of e-procurement below 5%?  What 
are the major schemes to expand the use of e-procur ement in the Green Paper issued in October 2010? 
 
Answer 
The 5% share is the overall aggregate figure for pr ocedures above the EU threshold, comprising all 
Member States, all types of contracting authorities and of purchases.  The main challenges that slow 
down the switchover to fully fledged electronic proce dures (especially as concerns e-submissions) are  
the complexity of change (the back-office busin ess processes), sometimes a resistance to change and a 
need for more training and also the complex legal  and technical requirements that are needed to 
ensure full cross-border access to procedure systems.  
It shall be noted that the uptake is very high in some first-mover Member St ates.  For example, the 
proportion of procurement contracted electronically  in Portugal is 90% (use of e-tendering is 
obligatory for most procurement), for Lithuania it is 60%.  Also, many Member States authorities 
have rendered electronic some procedural stages but not (yet) all.  Thus rates for e-Notification and 
e-Access are much higher (example: central online p ublication of all notices under EU legislation on 
TED www.ted.europa.eu).  Finally, there is a growing trend towards centra lisation of purchasing (centralised purchasing 
bodies). Many of the centralised purchasing bodies op erate sophisticated e-procurement facilities.  In 
a recent survey, the Commission iden tified 230 e-procurement portals and platforms offering varying 
degrees of functionality.  Given the increased avai lability of e-procurement capacity and growing 
experience of suppliers and public purchasers with these systems, there are st rong reasons to expect 
an increase in the volume of the electroni c public procurement in the coming years. 
The main schemes to expand the use of  e-procurement are the following: 
(i) The legislative proposals modifying the exi sting e-procurement rules as part of the 
modernization of the general EU public procu rement framework (planned for the end of 2011) 
(ii) A non-legislative strategy document on e-proc urement (expected early 2012) that will launch 
initiatives to promote best practice and facilitate replication of best of breed  solutions. WT/TPR/M/248/Add.1 
Page 107 
 
 
  (iii) In addition, several pilot projects are cu rrently on-going (for example, PEPPOL, ePRIOR) 
that are expected to provide building blocks for cross-border e-procurement data exchange and 
provide standard solutions for some e-procurement processes.  Question 4 - Secretariat Report, page 83, paragraph 204 
The contracting authorities may award contracts in lots with a view to accommodating social 
considerations or promoting the pa rticipation of SMEs in procuremen t, provided that the procurement 
requirement is not subdivided to avoid the applica tion of the EU Directives. Is there any mechanism 
being applied in judging that the procurement requi rement is not subdivided to avoid the application 
of the EU Directives?   Answer   
The EU contracting authorities are allowed award cont racts in lots, as long as this does not lead to 
avoiding the threshold of the EU Directives and the G PA.  This obviously benefits to the participation 
of SMEs in the EU tender procedures.  The EU Di rectives do not contain any  provision that would 
allow splitting of contracts in lots with the view to accommodating social considerations.  The EU is 
equipped with a specific tool (an electronic platform in-built to OJ/TED) that allows for monitoring of 
the split ups.  The EU Treaty pr ovides then for a procedure to in vestigate potential infringements of 
the procurement rules and remedy them..  Add itionally, the EU's harmonized system for bid 
challenges allows to the bidd ers to claim their rights.  
 
Question 5 - Secretariat Report, page 83, paragraphs 205 - 206 In some EU member states, the contracting authorit ies may split the contract into lots or require 
contractors to subcontract to SMEs.  Are these me asures applied to EU's procurement covered under 
the GPA?  Answer  
As explained above, the EU contracting authorities may split contracts into lots, if this does not lead 
to avoiding the thresholds of the EU Directives  and the GPA.  In the contract documents, the 
contracting authority may ask or may be required by a Member State to ask the bidder to indicate in 
his bid any share of the contract he may intend to  sub-contract.  This is not an obligation to sub-
contract to SMEs.  In the area of public works concessions (not covered by the current EU GPA 
commitments), the contracting authority may require the concessionaire to sub-contract a minimum of 
30% of the total value of the work to third parties.   KOREA II 
 
Question 1 - Secretariat Report, page 33, paragraph 25 Upon the request from a GSP beneficiary country , under certain conditions, the Commission may 
allow an "extended" cumulation between the benefi ciary country and a country that has a free trade 
agreement in force with the EU.  What are these conditions? WT/TPR/M/248/Add.1 
Page 108  
 
 Answer  
Extended cumulation is a system, conditional upon  the granting by the European Commission, on a 
request lodged by a beneficiary country and whereby cert ain materials, originating in a country with 
which the European Union has a free-trade agreeme nt in accordance with Article XXIV of the 
General Agreement on Tariffs and Trade (GATT) in fo rce, are considered to be materials originating 
in the beneficiary country concerned when furt her processed or incorporated in a product 
manufactured in that country.  Extended cumula tion may be granted by the Commission, provided 
that the countries involved in the cumulation have und ertaken, inter alia, to  provide the necessary 
administrative co-operation both with regard to the European Union and also between themselves 
and that the undertaking has been notified to th e Commission by the beneficiary country concerned. 
Materials falling within Chapters 1 to 24 of the Harmonized System are excluded from extended 
cumulation. More information is available in the guide fo r users on GSP rules of origin available at: 
http://ec.europa.eu/taxation_customs/customs/c ustoms_duties/rules_origin/preferential/article_839_e
n.htm. 
 
Question 2 - Secretariat Report, page 34, paragraphs 28-32 
The EU uses the "Meursing Table," which determin es the customs tariffs fo r processed agricultural 
products based on their ingredients.  What is the EU's opinion on the possib ility that these measures 
could deteriorate the transparency and predictability of tariff imposition? 
 
Answer  
The measures in question are predictable and transpa rent.  We refer Korea to the explanation on the 
calculations contained in the Annex 1 to the EU schedule resulting from the Uruguay Round.  
 Question 3 - Secretariat Report, pages 35-36, paragraphs 33-36 
Around 11% of tariff lines are non-ad valorem, and the average AVE of non-ad valorem tariff rates is 
24.7%, which is four times higher than the average of  ad valorem tariff rates. Does the EU have a plan 
to reduce the number of non-ad valorem tariff lines? 
 
Answer  
The nature of an import duty should not be confused  with the level of protection it provides. Korea 
will note that the calculation of an average duty depends on the methodology used to calculate ad 
valorem equivalents (AVEs) of non-ad valorem duties.  Any calculation of AVEs has shortcomings as 
the result can be influenced by several elements , including: the base period and partners chosen; 
commodity prices; exchange rates; shocks in specifi c markets;  treatment of mixed tariffs and tariff 
lines for which trade data are not available; and the extent to which preferential trade is included in 
the unit value calculation. 
The EU does not feel it has to justify the level or form at of its tariffs, which are all in line with WTO-
rules, including our specific tariffs.  Question 4 - Secretariat Report, page 37, paragraphs 40-41 
The EU uses tariff suspensions and allows enterpris es to obtain supplies at a lower cost in order to 
improve their competitiveness and to stimulate econom ic activity in the EU.  How does the EU assess 
the effectiveness of these measures? 
 
Answer  
The EU considers that the suspension of tariffs on  certain inputs can help European industry maintain 
its competitiveness in the diffic ult economic situation following the financial and economic crisis. 
However, these measures can only play a very modest part in our policy to re duce costs for business. 
Only the conclusion of a multilateral agreement on reciprocal tariff reductions can really address this 
issue in an efficient way and help businesses eve rywhere in the world to stay competitive.  
 WT/TPR/M/248/Add.1 
Page 109 
 
 
  Question 5 - Secretariat Report, page 52, paragraph 87 
EU RoHS I stated that the EU legislation relies on supplier's declaration of conformity (SDoC) for a 
major part of the goods marketed in the EU.  He nce firms that produce final goods should directly 
control the quality of their goods by managing their subcontractors that produce components.  This implies that a firm that produces components does not need to test its products according to the 
regulation.  Recently, however, EU RoHS II changed th is process so that the test should be performed 
on homogeneous materials, not on final goods.  This  means that now a firm that produces components 
should also have a test procedure as a regulation.  Th ere is a growing concern that this change can be 
burdensome for component producing exporters, which ar e mostly SMEs, with heavy cost for testing. 
What is the EU's opinion on this?  Answer  
Already under RoHS I, the limit values for restri cted hazardous substan ces apply to homogeneous 
materials and therefore also to all EEE components :  "For the purposes of Article 5(1)(a) of 
Directive 2002/95/EC, a maximum concentration value of 0.1 % by weight in homogeneous materials 
for lead, mercury, hexavalent chromium, polyb rominated biphenyls (PBB) and polybrominated 
diphenyl ethers (PBDE) and of 0.01 % by weight in homogeneous materials for cadmium shall be 
tolerated." RoHS II only specifies this key requi rement in greater detail in ord er to facilitate implementation.  
 Question 6 - Secretariat Report, page 52, paragraph 87 
According to RoHS, the EU regulates hazardous substance contents in solids by ppm(mg/kg = ppm) 
and in vapors by mg.  It has been pointed out that  using different units for testing confuses exporters 
in the conformity assessment procedure. Is the EU making any effort to resolve this problem? 
 
Answer 
This is, apparently, a misunderstanding. Without excep tion, the general RoHS I and II limit values 
for restricted substances are specified as weight p er cent in homogeneous materials (0.1 % = 1 000 
ppm). Only some of the exemptions from these restrictions, for very specific applications where for 
technical reasons it would be difficult, if not impossi ble, to refer to weight per cent, set (significantly 
higher) limit values in mg per co mponent/device.  Of course these c oncentration valu es are based on 
industry's own expertise and a thorough scientific evaluation. 
 Question 7 - Secretariat Report, page 57, paragraph 106 
The General Food Law permits the establishment of  "provisional" measures if "the possibility of 
harmful effects on health is identified but scientific uncertainty persists."  Could the EU elaborate on 
what "provisional" means? It would be appreciated if  the EU could illustrate by example, if possible. 
 
Answer  
"Provisional" is related to Art. 5(7) of the SPS Agreement, and there are severa l aspects to take into 
account: insufficient scientific evidence, search of additional information and the review of the 
measure within a reasonable period of time.  
The decision to take provisional measures could be exercised where sci entific information is 
insufficient, inconclusive, or uncertain and where th ere are indications that the possible effects on 
human, animal or plant health may be potentially dang erous and inconsistent with the chosen level of 
protection. Unfortunately, no such measures have been adopted si nce the last Review of the EU, therefore, there 
are no examples to mention. 
 Question 8 - Secretariat Report, page 59, paragraph 118 
To allow EU member States to exchange informa tion about measures taken in response to serious 
risks detected in relation to food  and feed and to establish a unifie d food safety management system, WT/TPR/M/248/Add.1 
Page 110  
 
 the EU is operating the Rapid Alert System for Food and Feed (RASFF).  Under this system, if any 
risks that could adversely affect human or animal h ealth are identified in pr oducts, their entry can be 
denied.  Could the EU elaborate on "the risks that could adversely affect human or animal health"? 
 
Answer  
The meaning of risk on this context is a function of the probability of an adverse health effect and the 
severity of that effect, consequential to a hazar d.  Concerning the RASFF, whenever there is any 
information about a serious health risk deriving from  food or feed, it must be notified immediately so 
the European Commission and other member States a re informed and can act more rapidly and in a 
coordinated manner in response to a serious health  risk.  Notifications regarding serious risk are 
notified as alert. 
 Question 9 - Secretariat Report, page 70, paragraph 164 
Could the EU provide an explanation on why its le gislation does not require prior notification and 
scrutiny for state aid under the Gene ral Block Exemption Regulation and de minimis  support?  Does 
this exemption have any implications on the comp atibility of the covered state aid measures with the 
SCM Agreement? 
 
Answer  
In recent years, the Commission started a process of modernisation and simplification of State aid 
procedures. To this end, the C ouncil adopted Regulation No 994/98 of 7 May 1998, which enables the 
Commission to adopt so-called Block Exemption Regulations for State aid.  
With these regulations, the Commission can declare sp ecific categories of State aid compatible with 
the Treaty if they fulfil certain conditions, thus exempting them from the requirement of prior 
notification and Commission approval.  As a result, Member States are able to grant aid that meets 
the conditions laid down in these regulations with out the formal notification procedure and only have 
to submit information sheets on the implemented aid. 
These regulations are used for the most straightfo rward cases such as de minimis aid (where the 
amount is so reduced that it presumed to have onl y negligible effects on competition and trade), or 
smaller amounts of aid for certain objectives such as SME support, research and development and 
innovation aid, training, etc.  For such cases, th e conditions of the block exemption Regulation can be 
considered as the outcome of a balancing exercise be tween the negative and positive effects of the aid 
measures, which the Commission has carried out in advance.  
For cases not covered by the block exem ption, the notification obligation applies.  In its assessment of 
notifications the Commission applies the criteria la id down in guidelines and frameworks for different 
types of aid.  For the largest cases, which could create significant distortions of competition, an in-
depth assessment will be carried out, based on the so-called balancing test in which the negative  
effects on trade and competition in the common market  will be balanced against its positive effects in 
terms of a contribution to the achievement of well-defined objectives of common interest. 
For more information, please visit: http://ec.eu ropa.eu/competition/state_ai d/overview/index_en.html. 
Question 10 - Secretariat Report, page 78, paragraph 192 
Can procurement be advertized in official journa ls or other media in the countries where suppliers 
have their establishments?  Answer  
Articles 41 and 42 of directive 2004/17/EC and artic les 35 and 36 of directive 2004/18/EC describe 
the obligations to be fulfilled by EU contrac ting authorities and contracting entities as far as 
publication of notices are concerned.  WT/TPR/M/248/Add.1 
Page 111 
 
 
  As a general principle, contract notices should be pu blished in the Official Journal of the EU. Notices 
can also be published at national level.  However, they cannot be issued before the date the contract 
notice is sent to the Commission for publication at  the EU level.  Also, they shall not contain 
information other than that contained in the notices dispatched to the Commission.  
Question 11 - Secretariat Report, page 81, paragraph 199 EU procurement Directives do not apply to certain exempted sectors (such as telecommunications and 
broadcasting sectors).  What are the criteria for such exemption? 
 
Answer  
The EU procurement directives do not apply to the telecommunication sector because it has been fully 
liberalized.  According to the EU criteria, as comp etition de jure and de facto has been achieved in 
this area:  this market is fu lly exposed to competitive forces. 
 The broadcasting sector has a strong linguistic  and artistic specificity.  Therefore, public 
procurement directives do not fit for this sector.  
Question 12 - Secretariat Report, page 88, paragraph 226 
Has the EU ever investigated any case of local nexus, i.e. the possibility that a firm with monopolistic 
power in one country obtains monopolistic power in  another country based on bilateral cooperation 
between the two countries under trade agreements?  Answer  
No such case could be identified.  
Question 13 - Secretariat Report, page 104, paragraph 9 
Since 2003, reform has focused on moving to a system  of direct payments decoupled from prices and 
production.  For example, in the 2003 reform of  the CAP, the EU introduced the Single Payment 
Scheme for direct payments.  Under which article (s) of the WTO Agreement on Agriculture are the 
subsidies provided?  What are the requirement s for the subsidization under this Scheme? 
 Answer  
The EU would like to refer Korea to notifica tion G/AG/N/EEC/58 of 24 February 2009 where replies 
to these queries can be found.  
Question 14 - Secretariat Report, page 110, paragraph 37 The EU reserved the right to use the Special Agricultural Safeguard (SSG) on 539 tariff lines. 
However, the actual use of the SSG has been on a limited range of products.  Among those products, 
for how many tariff lines (based on HS 8 digit) was the SSG actually triggered during the past five years? Could the EU provide those tariff lines?  Answer  
The EU applies the SSG in conformity with Artic le 5 of the Agreement on Agriculture and notifies to 
the WTO an annual summary of the products for wh ich special safeguard actions have been taken. 
Actual use of the SSG has been on a limited range of products.  The price-based SSG has been made 
operational for chicken, turkey, and sugar products almost continuously;  with some egg products 
added for marketing years 2007/08 and 2008/09.  The EU has calculated trigger volumes for fruit and 
vegetables on a regular basis but the volume -based SSG has never been implemented. 
Please refer to the documents listed below fo r the information you are looking for: 
G/AG/N/EEC/66 of 12 January 2011. G/AG/N/EEC/63 of 25 January 2010. 
G/AG/N/EEC/60 of 26 March 2009. 
G/AG/N/EEC/54 of 14 February 2008 (this documen ts contains four separate marketing years). WT/TPR/M/248/Add.1 
Page 112  
 
 Question 15 - Secretariat Report, page 110, paragraph 39 
Export subsidies have not been used on cereals since July 2006 or on sugar since October 2008.  As of 
February 2011, however, they continue to be ava ilable for cereals, beef, veal, poultry, pork, eggs, 
sugar, and some processed goods.  Will export subsidies continue to be provided for the above-
mentioned items until 2013?  Or will th ey be revoked at an earlier date?  
 Answer  
The EU remains committed to the conclusion of the DDA negotiations which should lead to the 
parallel elimination of all form s of export subsidies and discipl ines on all export measures with 
equivalent effect, as part of a comprehensive,  ambitious and balanced package under the Single 
Undertaking, including domestic support and mar ket access provisions as established in the 
December 2008 draft modalities, but also TRIPS issues, namely GI register and GI extension. 
 Question 16 - Secretariat Report, page 112, Chart IV.2 
In the Chart IV.2, the Blue Box has been redu ced by half since 2005/2006 and has continued to 
decrease. What are the precipitating factors in the significant decrease?  Are there any cases where 
Blue Box subsidies were change d into Green Box subsidies? 
 
Answer  
Such evolution of Blue Box support is a result of reforms of the CAP. The reduction observed since 
2005/2006 is related to the implementation of the 2003 reforms. For detailed information please refer 
to notification G/AG/N/EEC/58 of 24 February 2009. 
 Question 17 - Secretariat Report, page 131, paragraph 96 
The telecom reform package is to be instituted in member States by May 2011.  Could the EU provide 
more detailed information on the state of the impl ementation of the reform measures?  Have there 
been any instances of non-compliance?  What kind of punitive actions are supposed to be taken in the 
case of non-compliance?  
 
Answer  
EU Member States had to notify the measures tr ansposing the revised regulatory framework into 
national law to the European Commission by 25 Ma y 2011.  While all Member States are working on 
transposition and a majority of them have notified me asures to the Commission, only a minority of 
them have notified full transposition measures so far.  The Commission monitors the transposition 
process closely, and will take legal action against Member States if appropriate.  
 Question 18 - Secretariat Report, page 132, paragraph 99 
Could the EU provide detailed information about th e respective jurisdictions of the EC and BEREC 
with regard to telecom regulations?  What specifi c authorities are endowed to BEREC?  Are there not 
any overlaps between their jurisdictions? 
 
Answer  
BEREC is an advisory body that will assist the Commission and National Regulatory Authorities 
(NRAs) in assessing the technological complexities of the markets and in developing the internal 
market.  It advises the Commission and NRAs when applying the EU regulatory framework and the Roaming Regulation, and serves as a body for reflec tion and advice to the European institutions in 
the area of electronic communications.  Therefore,  there are no "overlap of jurisdictions" between the 
Commission and BEREC. 
BEREC is an independent expert body composed of th e heads of the 27 NRAs and is assisted by the 
Office. In other words, it comprises those who have the detailed local knowledge of the markets.  It is 
the exclusive forum for the cooperation among NRAs and between those and the Commission;  it will 
act as the focal point at European level for dea ling with inconsistencies and regulatory fragmentation 
and will contribute to develop common approaches in the interest of the internal market. WT/TPR/M/248/Add.1 
Page 113 
 
 
  CHINA I 
 
Secretariat Report  I. ECONOMIC ENVIRONMENT 
Question 1  
Please provide more information on measures the EU h as adopted with regard to sovereign debt crisis 
and under its fiscal and financial policy stimul us, esp. in relation to the tourism sector. 
 
Answer 
After a few years in which the EU had significant problems in respecting the goals it set itself on economic and fiscal policies, fiscal consolidati on is now making headway.  Budget balances are 
projected to improve substantia lly over the coming years.  By 2012, the average fiscal deficit is 
projected to come down to 3¾% of GDP in the EU  and 3½% in the euro area from the 2009 peaks of 
respectively 6% and 6½%.  In order to strengthen the surveillance mechanism, the Commission 
presented six legislative proposals on 29 Septemb er 2010.  The European Parliament and the Council 
are expected to give their final ag reement to the package in June 2011.  A description of the EU's 
actions can be found at http ://europa.eu/rapid/pressReleasesA ction.do?reference=MEMO/11/364.  
The tourism sector has not been singled out as sector needing special attention at EU level during the 
sovereign debt crisis.   
However, individual Member States have supported specific sectors in response to the global and 
financial crisis which have focused on automotive, c onstruction and tourism sectors.  These sectors 
are among those hardest hit by the fallout from the fi nancial and economic crisis.  In view of this, the 
sectoral focus is justified, particularly given that  these sectors represent a larg e part of the European 
economy and display strong linkages with other impo rtant sectors along the value chain. An overview 
of measures is given in ECFIN's Product Market Review of 2009, available at 
http://ec.europa.eu/economy_finance/publicati ons/european_economy/2009/pdf/ee11_2009_en.pdf  in 
the table in Annex 3-2.  II. TRADE POLICY 
In Para. 43, "the Lisbon Treaty" integrates foreign di rect investment into the EU external trade policy, 
thus attributing to the EU exclusive competence in  this area (see section (1) above).  As a result, 
member States are no longer compet ent to negotiate international agreements on foreign direct 
investment with third countries unless empowered to do so by the EU." 
 
Question 2  
In July 2010, the EU released a draft regulation establishing transitional arrangements for investment 
agreements between member states and third countri es. Please provide updated information, if any, 
regarding this draft regulation. 
 
Answer 
The Commission indeed proposed a draft Regul ation establishing transitional arrangements for 
bilateral investment agreements to the Council and the European Parliament.  However, this draft 
needs to be adopted by the Council and the European Parliament through the ordinary legislative procedure as defined in Article 289 and 294 of the TFEU.  This procedure is currently on-going.  
 Question 3 
Please indicate under what conditions EU member st ates could enter into negotiations with third 
countries. 
 WT/TPR/M/248/Add.1 
Page 114  
 
 Answer 
The future Regulation establishing transitional a rrangements for bilateral investment agreements 
between Member States and third countries (mentioned in par. 45 and question 2 above) will establish 
the conditions and the procedure under which Memb er States would be empowered to negotiate new 
bilateral investment agreements or re-negotiate existing ones.  Since the proposed Regulation is still 
under discussion between relevant EU institutions, no fu rther information is available at this stage.   
 Question 4  
In which way could harmonization and certainty be tween the EU and its member states be achieved 
when they are engaged in foreign direct  investment and cooperation negotiations? 
 Answer 
The quoted sentence refers to the future European in ternational investment policy, which would be 
gradually implemented through the conclusion of in vestment protection agreements at EU level. One 
of the objectives of the new policy is to provide for a level playing field, which assures both uniform 
and optimal conditions for investment.  
 Legal certainty refers to the existing level of inve stment protection provided through the network of 
almost 1200 agreements concluded by Member States.  These investment protection guarantees 
constitute one important element of  building confidence in the legal security required for taking sound 
investment decisions.  The future Regulation estab lishing transitional arrangements for bilateral 
investment agreements reinforces with regards to Eur opean law the status of the bilateral investment 
agreements concluded by Member States with th ird countries, which are and remain valid under 
international law.  With the entry into force of th e Lisbon Treaty, the EU will gr adually establish a comprehensive 
international investment policy regime. 
 Question 5 
Please indicate the schedule, objectives and contents of  its plan for realizing this goal. How will the 
impact assessment be conducted?  Answer 
The principles and parameters for the gradual implementa tion of the future EU policy are set forth by 
the European Commission in its Communication "Towards a comprehensive EU international 
investment policy":  (available at http ://trade.ec.europa.eu/doclib/docs/2011/may 
/tradoc_147884.pdf).  
 
The impact assessments ar e realized according to a detailed ge neral methodology that the European 
Commission has developed (details are availabl e at:  http://ec.europa.eu /governance/impact 
/index_en.htm).  Question 6 
What are the impacts of this regime on EU (and its member states) in their foreign direct investment 
in other countries and regions?  Is harmonizati on between more developed and less developed EU 
member states needed in their foreign dir ect investment activities and their interests? 
 
Answer 
We understand the reference to "more developed a nd less developed EU member states" as being 
related to the fact that EU Member States have a more or less developed network of bilateral 
investment agreements already in force with third countries.  In its Communication mentioned above 
(para 47 and answer to question 5), the Commission a cknowledges this reality: since not all Member 
States have concluded investment protection agreemen ts and not all agreements provide for the same WT/TPR/M/248/Add.1 
Page 115 
 
 
  level of protection, there is a risk of uneven playin g field for EU companies investing abroad as well 
as of discrepancies between the levels of investme nt protection granted to foreign individuals and 
companies investing in the EU.  In this respect, as explained previously, the impl ementation of the future EU policy will take place 
gradually. In the long run all EU investors, as well  as investors from third countries, should be able 
to rely on a network of agreements concluded at EU level for an effective protection of their 
investments.  
 
CHINA II 
 
Secretariat Report  I. ECONOMIC ENVIRONMENT 
In Para. 10, the report states that following the onset of the financial crisis, "a majority of Member 
States provided support for the financial sector.  In 16 of them, support ranged between 5% and 35% 
of GD".  
Question 1  
Please provide any analytical information related to the economic impact of those supporting 
measures, including their impact on the market.  Answer  
The announcement and implementation of rescue meas ures for the financial sector have played an 
important role in avoiding a complete financ ial markets meltdown and contributed to restoring 
market confidence.  In particular, public capital in jections have been instrumental in underpinning 
the level of bank capital.  In the absence of th ese government capital injections a significant number 
of banks would not have been able to meet market  requirements for higher capital ratios and could 
even have faced the risk of insolvency.  State guaran tees and capital injections were also crucial in 
improving the early downward spiral of trust and had a positive impact on banks' access to wholesale 
funding, thereby supporting the flow of credit to th e real economy.  Finally, impaired assets relief 
measure helped reduce concerns about the quality of assets on banks' balance sheets and improved 
the confidence in their solvency and earning poten tial.  The situation has remained nevertheless 
fragile as  the decline in the real economy led to a so -called negative feedback loop and the sovereign 
crisis has created new uncertainties as to th e resilience of banks to their credit exposures. 
More generally, certain characteristics of the EU system minimised the distortions of competition and 
trade of the support granted in the context of the financial and economic crisis: 
 First, in order for aid to be allowed, access to the schemes had to be non-discriminatory: all 
banks and companies in the EU (regardless of th eir nationality) benefitted from the measures. 
Similarly, the Commission did not allow any "buy national" schemes, which are particularly 
trade distortive since they act as import restrictions; 
 Second, the rules applicable to allow aid were the same for everybody and known in advance. 
This high level of transparency contributed to avoiding any discrimination; 
 Third, the Commission made sure that the aid was restricted to the minimum, often by 
imposing severe conditions on the recipients.  This  ensured that the recipients would use the 
aid to restore their viability and not for market aggressive activities which would have had an 
impact on competition and trade. Strict monitori ng of the use of the aid and the fulfilment of 
conditions attached to it guarant eed that this would be so; WT/TPR/M/248/Add.1 
Page 116  
 
  In addition, the Commission attach ed strict and substantial conditions to the approval of the 
aid aiming at minimising the distortions of competition and the effect on trade (e.g. structural measures such as divestments and behavioural commitments); 
 As regards aid to the real economy, the te mporary framework tackled clearly identified 
market failures and focused on SMEs which have a more reduced capacity to distort 
competition and affect trade; 
 Finally, the measures adopted in the context of th e crisis were limited in time. In authorising 
aid, the Commission was particularly adamant that  the measures should be limited in time 
and contain measures to incentivise an exit fr om public support as soon as possible. 
The European sovereign debt crisis is deteriora ting with the escalation of Greek debt crisis. 
 Question 2 
Please provide detailed information on measures the EU has adopted and will take to deal with the 
crisis and under such measures how the inter est of foreign investors is protected.   
 
Answer  
The 2008-2009 global crisis exposed the vulnerabil ities of the Greek economy.   The extent of the 
deterioration in the fiscal position was revealed late  due to grave deficiencies in Greece's accounting 
and statistical systems.  This delayed the implem entation of corrective measures.  As concerns about 
Greek fiscal sustainability arose and global risk aversion heightened, market sentiment vis-à-vis 
Greece worsened sharply in early 2010.  In Ap ril 2010, Greece asked for international financial 
assistance as it was confronted with sizeable fi nancing needs and not able to access international 
capital markets.  On 3 May 2010, Greece pres ented an encompassing adjustment programme 
supported by financial assistance provided by the euro-area Member States and the IMF amounting 
to EUR 110 billion.  The accompanying Memorandum of Understanding and its successive supplements lay down the economic policy conditions on the basis of which the financial assistance is 
disbursed.  Compliance with programme conditiona lity is monitored on a quarterly basis.  The 
quarterly assessments by the Commission can be found in: http://ec.europa.eu/economy_finance/public ations/occasional_paper/2010/op61_en.htm. 
http://ec.europa.eu/economy_finance/public ations/occasional_paper/2010/op68_en.htm. 
 http://ec.europa.eu/economy_finance/publications/occasional_paper/2010/op72_en.htm.  http://ec.europa.eu/economy_finance/publications/occasional_paper/2011/op77_en.htm. Europe has a fully open capital account and according to article 60 of the Treaty on the Functioning 
of the European Union does not differentiat e between European and foreign investors. 
The European sovereign debt crisis fully exposed its  systemic defects between the centralized 
monetary policy and decentralized fiscal policies in the euro area.  In order to prevent the relapse of 
the crisis, Mr. Jean-Claude Trichet, President of  the European Central Bank, recently called for an 
EU Finance Ministry.  
 
Question 3  
Please provide information on the on-going discussions within the EU and possible considerations of 
Mr. Trichet's suggestion. 
 
Answer  
According to the Treaty on the Functioning of th e European Union, in particular 130 thereof, the 
members of the ESCB shall act independent.  The European Commission is hence not suited to 
explain the comments by Mr. Trichet.  In the EU's Statement (WT/TPR/G/248) Para. 55 states "in September 2010 the Commission delivered a comprehensive package of legislative measures to reinforce economic governance in the EU and the WT/TPR/M/248/Add.1 
Page 117 
 
 
  euro area."  The package includ es fiscal policies and "sanctions will be the normal consequence for 
countries in breach of their commitments".  Question 4  
Please provide detailed information on the legislative measures regarding fiscal policies and sanctions. 
 
Answer  
After a few years in which the EU faced significant  problems in respecting the goals it set itself on 
economic and fiscal policies, fiscal consolidati on is now making headway.  Budget balances are 
projected to improve substantia lly over the coming years.  By 2012, the average fiscal deficit is 
projected to come down to 3¾% of GDP in the EU  and 3½% in the euro area from the 2009 peaks of 
respectively 6¾% and 6½%.  In order to strengt hen the surveillance mechanism, the Commission 
presented six legislative proposals on 29 Septemb er 2010.  The European Parliament and the Council 
are expected to give their final ag reement to the package end June 2011.  A description of the EU's 
actions can be found at http ://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/364.  
 III. TRADE POLICIES AND PRACTICES BY MEASURE (1) 
MEASURES DIRECTLY AFFECTING IMPORTS  
 
In Para. 1 of the Secretariat's Report, it is menti oned that "The basic customs legislation is the EU 
Customs Code and its Implementing Regulation." 
 
Question 5  
Please clarify how the EU Customs Code is harmonized with the Custom Law of each member state, 
or with the entering into force of the EU Customs Code, how is the Custom Law of each member state 
applicable?  Does the legal effect of the EU Cu stoms Code on all occasions overrides the Custom Law 
of each member state? 
 
Answer  
The EU Customs Code and its Implementing Regulati on take the form of regulations, and for that 
matter they take immediate effect in the domestic law of the Member States.  The Customs Code and 
its Implementing Regulation are an integral part of the legal systems of the Member States and in 
case of conflict, the EU law overri des the law of the Member State.  
 
In Para. 2, it is mentioned that "the European Co mmission maintains a website of customs legislation 
and related case law, and legislative proposals."  
 
Question 6 
Could the EU clarify how it handles the legislative proposal made by the stakeholders? 
 
Answer  
There is not a formal mechanism to handle proposal s by stakeholders, however those are treated with 
utmost consideration.  
 
In Para. 9, it stated that "the Electronic Customs Decision" and "the common functional 
specifications" are mentioned.   Question 7  
Could the EU further clarify these two concepts and th e role they play in the application of the single 
window services?  WT/TPR/M/248/Add.1 
Page 118  
 
 Answer  
The so-called "Electronic Customs Decision" is th e legal framework for the implementation of IT 
customs projects in the EU since there is a need to synchronise the 27 MS administrations and the 
European Commission.  It contains a number of rules from objectives to the listing of task of the Commission and tasks of Member States, strategy and planning and financial prov isions.  This legal 
text of Decision 70/2008/EC of 15 January can be found in OJ L 23, 26.1.2008, p.21.  
Common functional specifications are the documen ts where the process, the messages and the data 
model for the messages (for the specific case of Single Window, this is based on the data mapping 
between the customs declaration and the other polic y document) are described and that serve as basis 
for the technical documentation fo r the development of IT systems.  
In Para. 9, it read "Under EU customs legislati on, national customs administrations must issue 
advance written rulings on tariff classification and origin matters."  
 
Question 8  
Could the EU provide more detailed information on it?  Is it possible that a legal text, or internet 
linkage to it, be provided?  Are the advance ru lings by one member state applicable universally?   
 Answer  
Detailed information about Binding Tariff Information and links to the legal texts can be found on the 
following internet page:   
http://ec.europa.eu/taxation_customs/customs/cus toms_duties/tariff_aspects/classification_goods/inde
x_en.htm.  
Given that the European Union is a customs union advanced rulings are valid throughout the European Union, regardless of the Member State which issued them.  
 
Advance written rulings in origin matters:  
The legal basis is Article 12 of  Council Regulation 2913/1992 establishing the Community Customs 
Code and Articles 5 to 14 of Commission Re gulation (EEC) N° 2454/1993 laying down the 
implementing provisions of the Community Customs Code.  
Advance rulings in origin matters are referred  to as Binding origin information (BOI).  
Binding Origin information is a written decision on the determination of origin issued by the 
competent national customs authority upon request by the applicant.  
Application should be made in writing to the cust oms authority in the Member State in which the BOI 
will (normally) be used, or in the Member State in which the applicant is established.  
The national customs authority has 150 days from th e date when the application is accepted in which 
to notify the BOI.  
Regardless of which Member State's national customs authority issued the BOI, it is binding on the 
customs authorities in all Member States in respect of goods importe d or exported after its issue, 
provided the goods and the circumst ances determining the acquisition of origin are identical in every 
respect to what is described in the BOI.  It is valid for three years from the date of issue.  
 
Question 9  
In addition, in the trade facilitation negotiations, some WTO members propose that custom evaluation 
be covered by advance rulings, what  is the EU's perception on it? 
 
Answer 
Currently, the EU has no plans to in troduce binding rulings with respect  to customs valuation, but we 
are aware that this issue is being negotiated in the WTO and we would therefore not want to prejudge 
the outcome of these negotiations.  
 WT/TPR/M/248/Add.1 
Page 119 
 
 
  In Para. 26, it stated that "the Register ed Exporter System (REX)" is mentioned.  
 
Question 10  
Could the EU give more detailed explanation on the practical operation of the system?  It is 
interesting to know whether the EU will consider capacity building to the GSP beneficial countries 
and regions according to their practical needs? 
 
Answer  
REX is a system of self-certification of origin of g oods that will allow exporters of goods to make out 
proofs of origin, called statements on origin, them selves.  This system will replace certification of 
origin of goods by the competent authorities of GSP beneficiary countries. However, to be allowed to 
do so exporters will have to undergo a registra tion process with the competent governmental 
authorities of the country of exportation.  For this  purpose, each EU's GSP beneficiary country will 
communicate to the European Commission data on exporters specified in the applicable EU 
legislation.  The list of registered exporters will be accessible online.  The system will be operational 
from 2017 onwards, with the possibility to postp one its implementation until 1 January 2020 at the 
latest for beneficiary countries which will not be  in a position to implement REX on 1 January 2017. 
It is important to note that exporters exporting any consignment of one or more packages containing 
originating products, where the total value of th e originating products c onsigned does not exceed 
EUR 6 000, do not have to be registered in the syst em to be able to make out statements on origin 
themselves.  
The competent authorities of beneficiary countries will be required to carry out necessary measures 
related to control of origin, which shall ensure the continued compliance of exporters with their 
obligations. Before the implementation deadline the European Co mmission will examine the state of readiness of 
beneficiary countries to ensure smooth and uninterr upted functioning of the registered exporter 
system.  Possible recommendations in this regard may be considered at a later stage. 
China exports to Romania pipe tobacco, which is normally defined as raw material and should fall 
under tariff line 24039990 subject to tariff of 52. 4%.  However, since 2009, Romania customs 
authority placed Chinese pipe tobacco under the ta riff line 24031090, definin g it as manufactured 
tobacco products, which greatly increased the ta riff burden for Chinese export and directly affects on  
tobacco related trade and foreign investment activities between China and the EU.  Furthermore, it is 
China's opinion that Romania has not kept a harmoni zed tariff policy with the EU in this regard. 
 Question 11  
China requests the EU to urge Romania custom au thorities to harmonize its tariff policy and replace 
the Chinese pipe tobacco under 24039990 tariff line  as raw materials and semi-processed item in 
accordance with the practical status and the actual declaration of the importers.  
 
Answer 
The tariff classification of pipe tobacco depends on its composition, the basic  question being whether 
the product contains tobacco or not.  As the inform ation provided only mentions "pipe tobacco" it is 
not easy to give the correct tariff classification wh ich can be done only on the basis of the exact 
composition of the product. 
However, it can be said that in accordance with General Rules 1 and 6 for the interpretation of the 
Combined Nomenclature the pipe tobacco (if it cont ains tobacco) has to be classified under heading 
2403, subheading 2403 10 as "smoking tobacco".  Moreover, depending on the packing the product 
can be classified either in subheading 2403 10 10 "in immediate packings of a net content not 
exceeding 500 g" or under s ubheading 2403 10 90 as "Other". 
Nevertheless, if the product does not contain any p ercentage of tobacco, it has to be classified under 
subheading 2403 99 90 as "Other". This question was discussed, in first  place, at WCO level during the 42nd meeting of the Harmonized 
System Committee on October 2008 (see document NC 1377-Annex E/2).  Additionally, it was also WT/TPR/M/248/Add.1 
Page 120  
 
 discussed at EU level during the last meeting of the Customs Code Committee (Agri/Chem sector) in 
June 2011. In order to clarify some doubts concerning the classific ation of this type of products, an amendment of 
the Combined Nomenclature Explanatory Notes to subheadings 2403 10 10 and 2403 10 90 and 2403 99 90 has been approved by the Customs Code Co mmittee.  The text which has been voted on 15
 June 
(and will be published soon) is the following:  
Page 101  
2403 10 10 and 2403 10 90 Smoking tobacco, whether or  not containing tobacco substitutes in any 
proportion 
 
The third paragraph is replaced by the following text: "Mixtures of smoking tobacco with substances ot her than tobacco are al so classified in these 
subheadings provided that they correspond to the definition given above, the exception being products 
intended for medicinal use (Chapter 30). 
These subheadings also include water pipe tobacco, i. e. tobacco intended for smoking in a water pipe 
and which consists of a mixture of tobacco and glycero l, whether or not containing aromatic oils and 
extracts, molasses or sugar, and whether or not flavou red with fruit.  However, products that do not 
contain tobacco are excluded from these subheadings."  Page 102 
2403 99 90 other 
The following point 5 is added: "5. Product for smoking (for example "water pipe tobacco") consisting wholly  of tobacco substitutes 
and substances other than tobacco."  
Two other remarks have to be done on China's question: 
1) It is mentioned that "China exports to Rom ania pipe tobacco, which is normally defined as 
raw material and should fall under tariff line 2403 99 90".  The raw tobacco or unmanufactured 
tobacco has to be classified under heading 2401 and not un der heading 2403 as it is mentioned in the 
question. 2) It is also stated that:  "However, since 2009, Romania customs authority placed Chinese pipe 
tobacco under the tariff line 2403 10 90, defining it as  manufactured tobacco products".  In China's 
questions, it seems that under 2403 10 90 are cl assified manufactured toba cco products and under 
2403 99 90 are classified unmanufactured tobacco products or raw material.  General Rule 1 for the 
interpretation of the Combined No menclature mentions that "…for le gal purposes, classification shall 
be determined according to the terms of the heading s...", and in accordance with the text of heading 
2403 "other manufactured tobacco and manufactured tobacco substitutes", all products classified 
under the aforementioned heading 2403 are to  be considered as manufactured products. 
In conclusion, it must be mentioned that the Ro manian practice classifying the pipe tobacco (if it 
contains tobacco) under subheading 2403 10 (2403 10  10 or 2403 10 90 depending on the packing) is 
correct and therefore its tariff policy is harmonized.  
In EU's Statement, Para. 80 states that "while an increase in trade defence actions could have been 
expected following the global economic downturn, it is notable that in 2009 these measures affected 
only around 0.5% of trade".  Question 12 
Please provide the number of trade defence acti ons (anti-dumping, countervailing and safeguard 
measures) taken since 2009, with basic facts of the cases and more specific data of their impacts on 
trade.  
 WT/TPR/M/248/Add.1 
Page 121 
 
 
  Answer  
Data on the number of trade defence cases initia ted on a yearly basis can be found in the WTO 
Secretariat's report page 40, Table III.4 and page 42 , Table III.6  Concerning the first 5 months of 2011 the data are the following:  
Initiations 
A total of 17 investigations w ere initiated, split up as follows: 
 10 new investigations, of which 3 anti-subsidy; 
 1 expiry review; 
 3 interim review, of which 1 anti-subsidy; 
 1 other review; 
 0 new exporter reviews, of which 0 accelerated; 
 0 anti-absorption investigations; 
 2 anti-circumvention investigations; 
 0 safeguard investigations were initiated.  
 
Measures 
 6 provisional measures were impo sed (of which 0 anti-subsidy); 
 6 definitive measures were imposed  (of which 2 anti-subsidy); 
 the Commission accepted undertakings offered by exporters in 1 case; 
 of the expiry reviews, 3 reviews (of which 0 an ti-subsidy) were concluded with confirmation 
of duty; 
 of the interim reviews, 3 reviews (of whic h 1 anti-subsidy) were concluded with 
confirmation/amendment of duty; 
 of the other reviews, 2 investigations were concluded confirming/amending the measures; 
 of the new exporter reviews, 0 (of whic h 0 anti-subsidy) was concluded with 
imposition/amendment of the duty; 
 of the anti-absorption investigations, 0 were concluded with increase of duty; 
 of the anti-circumvention investigations, 3 were concluded with extension of duty; 
 No definitive safeguard measures were imposed. 
 
Details of the individual cases concerned are to be  found in the EU's monthly reports to the WTO.  
In the Secretariat's Report, Para. 41 states that "the Commission notes that an early termination of 
these measures (autonomous tariff suspensions) is  possible if economic circumstances change". 
 Question 13 
Please explain in detail the meaning of  "economic circumstances change". 
 
Answer  
The principal aim of suspensions is to enable EU  enterprises to use raw materials, semi-finished 
goods or components not available in the Union.  Such suspensions are terminated once production resumes in the EU and this is essentially what is 
meant by "economic circumstances change". 
 In Para. 67, it states that "import surveillance sch emes seek to improve the ‘transparency of import 
trends', and are not intended to limit market access".  
Question 14 Please indicate specifically how the EU can ensure that such practice will not limit market access. 
 
 WT/TPR/M/248/Add.1 
Page 122  
 
 Answer  
By Regulation (EC) No 76/2002 the Commission in troduced prior Community surveillance of imports 
of certain iron and steel products originating in thir d countries.  This regulation was last extended by 
the Commission Regulation (EU) No 1241/2 009 of 16 December 2009 and shall run until 
31 December 2012.  This steel import licence mechanism  gives an early indication of the steel import 
flows into the EU in the following months.  The licence is free and automatic and does in no way 
constitute a limitation to market acce ss.  This has been confirmed by  the smooth running of the system 
since its start in 2002.  The analysis for the need to continue the system beyond end 2012 has not yet 
been made.  Monthly reports of steel volumes licensed by region of or igin and product group are 
published on the DG Trade website. 
 
This surveillance mechanism is deem ed to be necessary due to continuous volatility of the global steel 
markets and shifts in steel trade flows in particular in  terms of an economic crises.  While it is true 
that the unprecedented slump of the steel market in 2009 has been somewhat compensated by more 
favourable developments in 2010 and 2011, there are still considerable uncertainties in the market on 
top of some significant trade flow shifts and chang es in the raw material supply.  Developments 
related to the major steel producing counties such as China, Russia, Ukraine and Turkey have 
significant potential in this respect.  Therefore, th e EU does not consider it appropriate to end this 
transparency instrument earlier than anticipated. The re are no specific rules for defining the length of 
the limited period.  
 
In Para. 140, it states that "the EU provides assist ance to promote its agricultural products and food 
outside the EU (Chapter IV(1)).  In addition, export pr omotion schemes are in place at the national or 
sub-national levels".  Question 15 
Please provide the latest information on the devel opment and effects of the export promotion schemes 
since last review. 
 
Answer  
Since the last review in 2009, the EU has app roved the co-financing of 17 programmes for 
information and promotion purposes targeting third countries with a total EU contribution amounting 
to € 22 million.  This represents 50 % of the total information and promotion programme budget.  The 
sectors concerned are: fresh and processed fruit and vegetables, organic products, GI products, wine 
and spirits, olive oil, beef and pig meat.  The EU is targeting the following countries and regions in  
their promotion and information activities: Nort h and South America, Switzerland, Norway, Russia, 
Ukraine, Middle East, South East Asia, China, Japan, South Korea and India.  
 
The Lisbon Treaty integrates foreign direct investme nt into the EU external trade policy, thus 
attributing to the EU exclusive co mpetence in this area.  However, in WT/TPR/G/248, para. 40, the 
Commission proposes to authorize Member States to negotiate new and/ or to renegotiate old 
bilateral agreements under certain conditions.  
Question 16 Please indicate in detail under what conditions EU Me mber States could negotiate new or renegotiate 
old bilateral investment agreements with third countries. 
 
Answer  
In July 2010, the European Commission pr oposed a Regulation establishing transitional 
arrangements for bilateral investment agreements be tween Member States and third countries.  This 
Regulation will establish the conditions and the procedure under which Member States would be 
empowered to negotiate new bilateral investment agreem ents or re-negotiate existing ones.  Since the WT/TPR/M/248/Add.1 
Page 123 
 
 
  proposed Regulation is still under discussion between relevant EU institutions, no further information 
is available at this stage.  Question 17 
Please provide information on the division of power among the EU and its Member States in investment-related fields, such as foreign invest ment access, security screening and investigation, 
transfer of capital and profit, etc., after the Lisbon  Treaty came into force in December 2009.  Is the 
dominant policy-making power centralized to the EU  or still distributed among the Member States? 
 
Answer  
The Lisbon Treaty integrates foreign di rect investment into EU external  trade policy, thus attributing 
to the EU exclusive competence in th is area (see para. 2-3 and 43).  This is done by the new article 
207 of the TFEU.  But EU competences go beyond the text of this article, since the articulation of investment policy should be consistent with the Treaty's Chapter on capita l and payments (Articles 
63-66 TFEU), which provides that, in principle, a ll restrictions on payments and capital movements, 
including those involving direct as well as por tfolio investments, both between Member States and 
between Member States and third countries, are prohib ited.  The Commission has already stated in its 
Communication Towards a future European internati onal investment policy that it does not consider 
it neither desirable nor feasible to replace the invest ment promotion efforts of Member States, as long 
as they fit with the common commercial policy an remain consistent with EU law.   
The Report only lists Germany and Fr ance in terms of countries that have regulations and practices 
regarding security investigations into foreign investment.  Question 18 
Please indicate whether other EU states have sim ilar regulations and provi de information on their 
specific practice. 
 
Answer  
It is not clear to what "similar regulations" the qu estion might refer to and what "practice" could be 
meant.  Moreover, neither the report nor any of the documents referred to state in the relevant paras 
42-47 that France started to review the regulations.  It is therefore unfortunately impossible to reply 
to the question as it stands now.  
 The Report states that France started to revise th e regulations in the end of the year 2010 and such 
revise may conflict with EU rules.   
Question 19 Please provide information on the specific developm ent of the revision and ways of solutions if 
conflicts do occur. 
 
Answer  
See answer to question 19.  
 
Intellectual Property Rights 
 
In Paras. 239-242 information on unitary EU patent protection is presented.  
 
Question 20 Please provide information on the latest development of the unitary EU patent  protection system and 
any recently renewed efforts to enhance its implementation.   
 WT/TPR/M/248/Add.1 
Page 124  
 
 Answer  
In 2010 the Council confirmed that the 27 Member St ates could not reach a unanimous agreement on 
the translation arrangements applicable to the EU pat ent.  As most Member States still wished to 
create unitary patent protection in Europe, at th eir request, the Commission presented a proposal to 
launch enhanced cooperation in this area.  In March 2011, 25 Member States were authorized by the 
Council to establish enhanced cooperation in the area of unitary patent protection.  Spain and Italy 
decided not to participate in the project at this stage.  Question 21 
Please also provide detailed information on any pr ogress on the drafting of relevant implementing 
regulations, their proposed main contents, as well as  EU's subsequent legislative procedures in this 
regard. 
 
Answer  
Two proposals for implementing regulations were adopt ed by the Commission in April 2011.  The 
first proposal sets out the substantive rules on obtai ning unitary effect for granted European patents, 
and the second contains the translatio n arrangements for the granted patents.  The proposal on the 
substantive rules makes it clear that any inventor who has been granted a European patent by the 
European Patent Office (EPO) can request a unitary eff ect to be attached to their patent. The unitary 
effect ensures uniform protection throughout the 25 Member States and such a patent can be limited, transferred, revoked or lapse only in respect of all participating Member St ates. Renewal fees will 
have to be paid to the European Patent Organization by the patent holder.  
 According to the proposed translation arrangement s, other than the translations required by the 
European Patent Convention (Artic le 14(6)), no further translation requirements will apply.  During a 
transitional period of maximum 12 years, until high -quality machine translation becomes available, 
however, additional translation requirements apply.  Where the language of the proceedings is 
German or French, the patent has to be translated to English; where the language of the proceedings 
is English, the patent has to be translate d to another official language of the EU. 
In June 2011 the Council reached a general po litical agreement on the file. Currently the proposals 
are under discussion in the European Parliament (EP).  The EP is expected to vote on the file at the 
end of 2011/beginning of 2012.  The proposals coul d reach the final stage of the adoption procedure 
by mid-2012. 
 In Paras.243-244 information on the creation of databases for clean-energy patents by EPO and its 
Member States, and its impact on the app lication review process, is presented. 
 
Question 22 Have similar databases been created by any EU Me mber States besides those developed by EPO and 
UKIPO? 
 
Answer  
The Commission is not aware of any other databases be ing created.  However,  such initiatives are the 
competence of Member States, and they are under no ob ligation to inform or update the Commission 
about existence or use of any such databases.  Question 23 
Does EPO or intellectual property office of any Memb er States plan to launch a similar fast-track 
service for patent application with regard  to clean-energy technology as UKIPO?   
 
Answer  
At the national level, such initia tives are the competence of Memb er States, and they are under no 
obligation to inform or update the Commission about their plans.  The EPO is an intergovernmental WT/TPR/M/248/Add.1 
Page 125 
 
 
  organization, and not connected with the EU.  The Commission does not therefore have access to this 
information.  
 Question 24 
Does providing fast-track service for patent applicati ons in one specific field constitute discrimination 
against applications in other fields of technology? 
 
Answer  
Patent protection begins at the dat e of first filing.  Since an applicati on has to be filed before it can be 
considered for fast-track services, whatever the fast-track service in question, all patents are 
protected equally from the moment of application.  Even if an application is not eligible for fast-track 
services, patent offices would still have to meet the time limits for processing applications according 
to international obligations.  Question 25 
Please provide data on the number of compulsory licences granted by Member States since 2008, as 
well as detailed information on the major reasons of granting, all patents concerned and their royalty 
rates, etc. 
 
Answer 
The European Commission does not have this information available; the granting of compulsory 
licences is a Member State competence. 
 Question 26 
Please provide information on the latest developm ent of the cases (DS408, 409) India v. EU and 
Brazil v. EU on seizure of generic drugs in transit.    Answer  
A first round of DSU consultations took place in Geneva on 7 and 8 July 2010, to be followed by a second round on 13 and 14 September 2010.  On bo th occasion, participants engaged constructively 
in the consultations, where the EU delegation had  the opportunity to explain and clarify the 
functioning of enforcement of intellectual propert y rights at EU borders notably on the basis of 
Council Regulation 1383/2003.  A dialogue on matters of con cern ensued and is on-going. 
 Question 27 
Please describe any change in the intellectual prop erty legislature and practice of the EU and its 
Member States.  Please elaborate on the consistency of these regulations and practices with WTO 
rules.   
 
Answer  
This question is extremely broad.  The EU would like to refer China to the WTO Secretariat's report 
or to specific questions by other Members.  
Question 28 Please provide the specific number of Geographical Indi cations  products that the EU has granted. 
 
Answer  
2916 names have been registered as PDOs or PG Is for wines and agricultural products and 
foodstuffs.  330 names are registered as GIs for spirits.  
Question 29 
Please indicate where the detailed information on the GI products, including their technical 
characteristics, can be searched openl y and made available to public. WT/TPR/M/248/Add.1 
Page 126  
 
 Answer   
In wine, the product specifications will be soon available via the dat abase "E-Caudalie".  Please refer 
to DOOR database for agricultural products and foodstuffs: http://ec.europa.eu/agriculture/quality/door/lis t.html;jsessionid=pL0hLqqLXhNmFQyFl1b24mY3t9dJ
QPflg3xbL2YphGT4k6zdWn34!-370879141. 
 
Pursuant to Article 22 of TRIPS, the scope of goods that can apply for GI is not defined.  However 
relevant regulations of the EU permit only agric ulture products, food and wines to apply for GI and 
prohibit the application of GI to other goods.  
Question 30 Please explain the reasons for the limitations. 
 
Answer  
So far, specific systems for the protection of GIs ha ve been established at EU level for agricultural 
products and foodstuffs, wines and spirits drinks.  As regards other categories of goods, producers 
can seek registration of a collective Community Trade  Mark, which has to be owned by a collective 
body and may serve to designate the geographical origin  of the goods or services.  They can also seek 
the protection of GIs through sui generis national protection  systems of GIs in the Member States 
where such systems exist, through national collec tive or certification marks that allow for such a 
protection or, in any event, through national  competition or consumer protection law. 
 
It is also mentioned in Paragraphs 251-258 that the EU had carried out studies on protection of GI 
for non-agricultural products.  Question 31 
Please indicate whether the EU plans to expand th e scope of goods that can apply for GI. If yes, 
please indicate time of the implementation. 
 
Answer  
As regards the protection of GIs for non-agricultu ral products, a study on the protection of GIs for 
non-agricultural products had been commissioned by the Directorate General for Trade.  The views 
expressed in this study are those of the contract ors and do not represent any official views of the 
European Commission.  The European Commission announced in its Communication adopted on 24 May 2011 entitled "A Single Market for Inte llectual Property Rights Boosting creativity and 
innovation to provide economic growth, high quality jobs and fi rst class products and services in 
Europe" that it is about to launch a feasibility  study on the issue of GIs protection for non-
agricultural products in the internal market.  Th e study will notably provide an analysis of existing 
legal  frameworks in the Member States, an in-depth a ssessment of stakeholders' problems and needs 
and the potential economic impact of protection for non- agricultural GIs.  Drawing on the results of 
this work, following further reflection and co mprehensive evidence gathering, the European 
Commission will decide on an appropriate way forwar d, including the possible creation of a new EU 
title for such protection. 
 
Question 32 
Please confirm whether the EU has provided the same  level of protection under GI to both Wine and 
non-wine products.  
 
Answer  
The level of protection of GIs has been harmoni zed (see Regulations (EC) No 1234/2007, (EC) No 
110/2008 and (EC) No 510/2006).  WT/TPR/M/248/Add.1 
Page 127 
 
 
  According to the Report, it takes three years before a foreign GI can be registered and recognized in 
the EU if it wants to obtain GI protection in the EU.  Question 33 
Does the EU think this waiting time is reasonable and acceptable?  
 Answer  
The WTO Secretariat's report in paragraph 254 states that: "the authorities note that, the average 
registration time for foreign GIs and for European GIs is three years." Taking into account the necessary administra tive process, including translations, opposition 
procedure, information exchanges and technical consu ltations in view of finalizing the application, 
the average duration of registration is not unreasonable.  In Para 232, the EU is on its way to adopt a proposal  to extend the term of protection for performers 
and producers of sound recordings from 50 years to 95 years.  However, different voices aired by 
Members of WTO, including from within the EU, on  this proposal. Some argue that although the 
extension may help, to some extent, strengthen the protection for copyrights, it will limit the spread of 
the products and compromise the right of the public to  "approach and acquire intellectual products".  
 Question 34 
Please provide further information on the content of the proposal and its rationale, and explain how to 
strike a balance between the competing rights of prot ection of the owner and the public in this regard. 
 
Answer  
Currently, performers and record producers are prot ected for 50 years from the date of the 
performance or from the publication of the s ound recording, whereas authors are protected for life 
plus seventy years.  The proposal for term extension therefore tries to bring the copyright term for 
performers more in line with that applicable to aut hors.  Moreover, performers that live longer have 
an income gap at the end of their lifetimes.  When  the performers' rights expire they no longer have a 
say in the use made of their performances and th ey are thus exposed to potentially objectionable 
results which are harmful to their name or reputation.   
The Commission proposal on term extension crea tes an additional remuneration claim for session 
musicians who would be entitled to 20 per cent of gr oss sales revenue that accrues from sales in the 
extended term.  Moreover, the 'use it or lose it' claus e would give performers the possibility of getting 
their rights back from the producer with whom they ha ve a contractual relationship, if the latter fails 
to sell the recordings fifty years a fter the initial release.  The European Parliament has voted for an 
extension to 70 years rather than the 95 originally  proposed and it has introduced a provision for a 
'clean slate' which means that record producers can no longer refuse to pay roya lties to artists in the  
extended period.  The current Council compromise text, still to be adopted, fully reflects the EP 
amendments which the Commission finds acceptable.  As authors' term is considerably longer than that of performers, the public would not be able to 
access the work freely even after p erformers' term expires, as the wo rk would not fall into the public 
domain until the author's term of protection expi res.  As prices are unlikely to decrease after 
performers' term expires, a shorter term would merely present extra revenue for intermediaries.  By prolonging performers' term, the money is shifted from the intermediaries to the performers. 
 WT/TPR/M/248/Add.1 
Page 128  
 
 IV. DEVELOPMENT IN SELECTED SECTORS 
(1) 
AGRICULTURE  
 Question 35 
Could the EU explain the practical operational aspects of how the EU uses price intervention and subsidy policy to guide the production and circula tion of grains in its internal market?   
 
Answer  
Public intervention in the European Union was desi gned to support internal market prices, and has 
undergone substantial transformation over the years .  Today, the intervention price for grain has 
become the reference price, which is kept at € 101.31 per tonne.  From the 2010/11 marketing year a 
new system with two basic principles applies.  Fi rstly, buying-in at the fixed reference price is 
operable only for common wheat up to a maximum quan tity offered of 3 mio t per marketing year and 
by automatic tendering procedure above that ceiling.   Secondly, monthly increments are abolished. 
EU defines the minimum quality requirements (including moisture content, specific weight, and 
protein content) for cereals to be accepted for intervention.  
Question 36 
Could the EU please provide detailed information on its relevant policies an d regulations regarding 
non–EU enterprises to engage in grain production, pro cessing and trade in the EU territory?  Are there 
any restrictions or favourable measures?  
 
Answer  
There are no restrictions or favourable measures at EU level as regards non-EU enterprises to 
engage in grain production, processing and trade in the EU territory.   Question 37  
Could the EU explain if there are relevant policies at the current state regarding GMO grains and 
food?  What could be its future po licy tendency for GMO grains and food? 
 
Answer 
Regulation (EC) 1829/2003 on gene tically modified food and feed lays down regulatory framework 
for regulating genetically modified (GM) food and feed in the EU.  This framework pursues the global 
objective of ensuring a high level of protection of human life and health and welfare, environment and 
consumer interests, whilst ensuring that the inter nal market works effectively.  The Regulation is 
supplemented by Regulation (E C) 1830/2003 which ensures traceability and labelling of GMOs 
placed on the market.  Directive 2001/18/EC on the de liberate release of GMOs into the environment 
outlines the principles for, and regulates, experime ntal releases and the placing on the market of 
GMOs in the EU.  More information on the EU legislation on GMOs is available at 
http://ec.europa.eu/food/food/biotechnology/index_en.htm. The EU legislative framework on GMOs is currently subject to 2 evaluations: - Evaluation of the EU legislative framework on GM food and feed; - Evaluation of the EU legislative Framework in  the Field of Cultivation of GMOs under Directive 
2001/18/EC and Regulation(EC) No 1829/2003 and marketing of their other uses under Directive  
2001/18/EC.  The terms of reference as well as info rmation already collected in the framework of 
these two evaluations are published on th e website of the European Commission 
(http://ec.europa.eu/food/food/biotechnology/index_en.htm). The final reports of these two evaluations are due to be published soon. It is on the basis of these 
reports that it will be considered whether there is  a need to review the current EU policy on GMOs. 
 WT/TPR/M/248/Add.1 
Page 129 
 
 
  (2) T RADE IN SERVICES  
Tourism Service 
 
Para. 80, P127, Secretariat's Report reads, "on 30 November 2010, the European Parliament and 
Council agreed on a set of basic passenger rights, with additional rights for passengers travelling a 
distance of more than 250 kilometres.  The European  Parliament and the Council formally adopted the 
regulation on 16 February 2011.11  This means that after application of the legislation in 2013, the EU 
legislation will protect passengers travelling by all transport modes".   
Question 38 
Please indicate whether the additional rights for passenge rs will be applicable to tourists entering into 
the EU from other countries and regions.  If it is the case, please provide further information on the 
content defining the above aspect. 
 
Answer  
The question refers to an agreement in conciliati on between the European Parliament and the 
Council on a (then) draft Regulation concerning th e rights of passengers in bus and coach transport. 
In the meantime, the Regulation N°181/201112 has been adopted on 16 Fe bruary 2011 and published 
on 28 February 2011.  It will be ap plicable as from 1 March 2013. 
According to Art 2, the Regulation shall apply to  passengers travelling with regular services for non-
specified categories of passengers where the boarding or  the alighting point of passengers is situated 
in the territory of a Member State and where he sch eduled distance of the service is 250 km or more.  
However, for a maximum period of 4 years from the date of application of this Regulation, Member 
States may, on a transparent and non-discriminato ry basis, exempt from the application of this 
Regulation particular regular services because a si gnificant part of such regular services, including 
at least one scheduled stop is operated outside the Union.  Such exemptions may be renewed once. 
Apart from these geographical limitations, the Regu lation shall apply to passengers irrespective of 
their nationality, thus including tourists as well. 
This Regulation establishes rules for bus and coach transport in the following domains: 
(a) non-discrimination between passengers with re gard to transport conditions offered by 
carriers;  
(b) rights of passengers in the event of accidents arising out of the use of the bus or coach 
resulting in death or personal injury or  loss of or damage to luggage;  
(c) non-discrimination and mandatory assistance for disabled persons and persons with reduced 
mobility;  
(d) rights of passengers in cases of cancellation or delay;  (e) minimum information to be provided to passengers;  (f) handling of complaints;  (g) general rules on enforcement. 
 
                                                      
11 Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 
concerning the rights of passengers in bus and coac h transport and amending Regulation (EC) No 2006/2004, 
OJ L 55/11.  
12 Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 
concerning the rights of passengers in bus and coac h transport and amending Regulation (EC) No 2006/2004, 
OJ L 55, 28.2.2011, p. 1–12.  WT/TPR/M/248/Add.1 
Page 130  
 
 Postal Service 
In Para. 159, it states that "according to a study prepared for the Commission, although the postal 
markets in Estonia and Finland have been fully liberalized, licensing requirements inhibit market 
entry in the correspondence segment in Estonia, and th e letters market in Finland (Chapter IV(2) (iv)). 
 
Question 39  
As to the market access limitations to the postal ser vice in Estonia and Finland, will the EU and the 
two countries concerned take measures to addre ss the problem?  If yes, please provide specific 
information on the proposed measures. 
 
Answer  
According to national postal legislation in Estonia and Finland, there are no market access 
limitations and any postal service provider can provid e all postal services as long as it complies with 
the licensing requirements laid down in  the applicable national legislations. 
These licensing requirements essentially seek to ensure that postal services providers respect 
confidentiality of correspondence, deal with consumer complaints, provide postal services in 
accordance with the national regulatory framewo rk and comply with decisions of the national 
regulatory authorities that apply to them.  The excessive licensing requirements referred to in th e question, have already been removed in both 
countries following the adoption of new postal legisl ation.  Consequently, any postal service provider 
in Estonia and Finland can provide any postal servi ce in any part of the national territory of each 
state, without any additional mandato ry geographical coverage requirement.  
 Para. 107, p.134, Secretariat's Report reads, "the  Directives also provide that Member States may 
establish a compensation fund to ensure that uni versal service is provided, should the universal 
service obligation constitute an unfair financial burden for the designated universal service 
provider." 
 Question 40 
Which Member States have established a compensation fund to ensure that universal postal service is 
provided?  Could further information be provide d as regards the fund sources and regulatory measures 
adopted? 
 
Answer  
Many Member States of the EU had envisaged the establishment of a compensation fund even before 
the adoption of the Third Postal Directive.13  However, only two Member states (IT and EE) had 
actually created it until now and only in Italy it is also functional.14  As envisaged by the Postal 
Services Directive, a compensa tion fund (as a financing mechanism for universal service) may be 
funded by postal services providers, which provid e interchangeable services (see recital 27 of the 
Third Postal Directive), and/or users' fees. 
 
The compensation fund has to be administered by a body independent of the beneficiary or 
beneficiaries, which could be th e independent national regulatory authority for postal services (NRA) 
or indeed any other independent body.  In most  cases it is NRAs that are likely to become the 
administrators of compensation funds under applicabl e national legislation.  As the operation of 
                                                      
13 Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending 
Directive 97/67/EC with regard to th e full accomplishment of the internal market of Co mmunity postal services, 
OJ L 52, 27 February 2008, p. 3. 
14 For more information see the study on the Role of regulators in a more competitive postal market 
(available at:  http://ec.europa.eu/internal_market/post/do c/studies/2009-wik_regulators.pdf), p. 123 – 124.  WT/TPR/M/248/Add.1 
Page 131 
 
 
  compensation funds is ext remely limited, the EU cannot share any practical experience with the 
operation of such funds.  Question 41  
Which Member States have two or more than tw o universal postal service providers? How does the 
postal service regulatory authority supervise and coordinate them? 
 
Answer  
The Third Postal Directive allows for more than on e designated universal servi ce provider. However, 
where there is more than one designated universal service provider, there must be no overlap in 
obligations imposed (see recital 23). 
To date no Member State of the EU has desi gnated more than one postal operator as universal 
service provider.  However, in Ge rmany there is no de jure designat ed universal service provider, 
which means that all postal service providers ensure the provision of the universal service. To ensure reliability and continuity of the universal service, the German NRA (Bundesnetzagentur, 
BNetzA) constantly monitors the postal market.  At the same time, the former universal service 
provider (Deutsche Post AG) is obliged by law to notify the NRA six months in advance of any 
possible difficulties it has in ensuring services t hat are deemed to be universal postal services. 
 Question 42 
What kind of measures has been adopted to ensure that universal postal services are provided after the 
EU abolished postal monopoly? 
Answer  
The EU postal regulatory framework lays down vari ous measures designed to ensure the provision of 
the universal postal service. First, Member States can use public tendering for part or all of universal service provision (e.g. 
provision of letter mail; provision of postal services for a specific region), while respecting the 
prohibition of overlapping USO.  Second, Member States can establish a compensation fu nd if the provision of universal service entails 
net costs and represent an unfair financial burden fo r the designated universal service provider (for 
more see the answer to question 44). Third, a Member State can decide to leave the provision of the universal service to all market 
participants (for more see the answer to question 45). 
 Question 43 
Please provide some information with regard to  the commercial presence of the express service 
entities established by the non-EU countries.  Compar ed with the EU Member States, are there any 
specific approval procedures and qualif ication requirements for these entities?   
 
Answer  
There are no specific requirements regarding the estab lishment of non-EU companies for this sector. 
As regards the provision of postal services outside  the scope of universal service, such as express 
delivery services, Member States may, but are not  obliged, to introduce an authorization procedure 
for companies wishing to  provide these services. 
Requirements, if any, can be imposed in the context of a general authorization procedure for services 
outside the universal service.  These are limited to  ensuring compliance with the so-called essential 
requirements (e.g. confidentiality of correspondence; security of the network as regards transport of  
dangerous goods) and that all pos tal service providers have procedures in place to deal with 
customer complaints.  
This means that in the EU all postal operato rs, including express operators, can provide services 
without any limitation and no distinctions a re made between EU and non EU providers.   WT/TPR/M/248/Add.1 
Page 132  
 
 Question 44  
Please clarify if the EU aviation laws define a ny regulations and qualification requirements for 
express service entities to use air transportation?  Co uld the EU provide further information regarding 
the actual situation that the non–EU express serv ice entities are making use of the EU aviation 
services?  
 
Answer  
Express service entities based in th e territory of the EU engaged in commercial air transportation 
need to be licensed in accordance with Regulatio n EC 1008/2008 of the European Parliament and of 
the Council of 24 September 2008, on common rul es for the operation of air services in the 
Community (O J L 293/3 of 31 October 2008 L 293/3) .  This Regulation applies to all undertaking 
established in the EU permitted to carry by ai r passengers, mail and/or cargo for remuneration 
and/or hire.  Carriers so licenced (EU Carriers) have unlimited and unrestricted freedom to serve any 
points within the EU.  
Non-EU express service entities engaged  in commercial air transportation in the EU are subject to 
the bilateral air service agreement between the licensing non-EU state and the EU or, if there is no 
agreement at EU level, the relevant EU Member St ate from or to which services are provided.  
 
Medical Service  
 
Question 45  
Could the EU share with China some informat ion on the regulations for establishing medical 
institutions with foreign investment?    
 
Answer  
The EU market for medical servic es is not fully harmonized and Member States are competent to 
adopt legislation in order to regulate the supply of  such services by third country nationals within 
their territory.  Under their GATS Schedules of  Specific Commitments, certain Member States remain 
unbound also for national treatment (CY, FI, MT, RO).   With regards to market access, AT, CY, EE, 
MT and RO are unbound, while BG, CZ, SK, DE, ES, FR, IT, PT, IE, LV, LT, PL, SE, SI and UK have listed divergent reservations, which can be  consulted at the WTO's website.   
 
Question 46  
What could be the EU regulations for foreign me dical professionals providing medical service in the 
EU?  
Answer  
Under EU law, Member States may recognize third country qualifications in accordance with their 
national rules.  However, in case of professions th e training of which has been harmonized by EU 
law, Member States shall respect the EU minimum tr aining conditions.  Such is the case of medical 
doctors.  Consequently, Member States shall recogni ze a third country qualification in medicine only 
if this qualification meets the requirements set out  in Articles 24 (basic medical training) and 25 
(specialist medical training) of Directiv e 2005/36/EC on the recognition of professional 
qualifications. By way of example and without giving an exhaustive list of criteria, Article 24 of the 
Directive 2005/36/EC stipulates that basic medical training would comprise a total of at least six years of study or 5 500 hours of theoretical and practical training provided by, or under the 
supervision of, a university.  The  requirement of basic medical trai ning shall provide an assurance 
that the person in question has acquired the necess ary knowledge and skills in order to exercise the 
profession.   WT/TPR/M/248/Add.1 
Page 133 
 
 
  Visa, working license, and residence permit  
 
As indicated in Para 49 of the Statement, China has become one of the EU's major FDI investors and 
principal hosts today.  The Chinese government has been encouraging the Chin ese enterprises to make 
investment in the EU, and appreciates the EU for its facilitating efforts in this regard.  However, 
business visa, working license and residence permit re main issues that have not been tackled with 
effectively, which become barriers to the Ch inese enterprises making investment in the EU.  
 
Question 47 
Could the EU make further efforts to encourage and coordinate its Member States to find solutions to 
these realistic issues, hence creating favourable i nvest environment for th e Chinese enterprises 
making investment in the EU?  
Answer  
It is recalled that GATS covers the temporary m ovement of service suppliers (Mode 4), but does not 
apply to visa procedures or any immigration issues. Therefore, the following information are given on 
a purely informative basis.  As regards visas, Regulation 810/2009 of the Eu ropean Parliament and the Council of 13.7.2009 
establishing a Community Code on Visas (Visa Code) harmonizes the rules and procedures for issuing short stay visas and also provides for the po ssibility of obtaining multiple entry visas with a 
long validity among others for business persons.  The C ode is currently applied by 22 Member States 
and 3 associated States. 
As regards immigration and work permit matters,  it is moreover noted that these fall within the 
competence of Member States that regulate the sect or concerned fully in line with their international 
commitments. Existing EU legislation provides for a common legal framework regarding the 
conditions of entry and stay and the status and rights of certain categories of migrants.  This 
framework has a twofold objective: it imposes a common discipline on Member States to only admit 
migrants if certain conditions are fulfilled, and at  the same time provides a common set of rights for 
the migrants concerned, based on the philosophy of their fair treatment. In the field of legal migration, the following five directives have been adopted so far: - Council Directive 2003/86/EC on the right to family reunification;  - Council Directive 2003/109/EC concerning the status  of third-country nationals who are long-term 
residents;  
- Council Directive 2004/114/EC on the conditions of admission of third-country nationals for the 
purposes of studies, pupil exchange, unremunerated training or voluntary service; - Council Directive 2005/71/EC on a specific procedur e for admitting third-country nationals for the 
purposes of scientific research; and 
- Council Directive 2009/50/EC on the conditions of entr y and residence of third-country nationals for 
the purposes of highly qualified employment. Lastly, it is noted that the European Commission adopted a proposal on Intra-Corporate Transferees 
which is currently in the ordinary legislative pro cedure and is therefore being discussed in the Council 
and the European Parliament.  In line with th e GATS commitments on ICT, this proposal would 
regulate the terms and conditions for non-EU co mpanies to post key personnel –in particular, 
specialists employees and managers - to their subsidiaries in the Member States. 
 Emission Trading System (ETS)  
Question 48 
As it is known that China and the EU are in co nsultation on covering aviation industry into ETS. 
China hopes that China's developing country status c ould be fully taken into consideration by the EU 
and China's concerns could be addressed appropria tely through these bilateral consultations  
 
 WT/TPR/M/248/Add.1 
Page 134  
 
 Answer  
While not being trade policy measures, the EU is  open to continue discussions with China about 
aviation and climate change policy through appropri ate channels, in particular through providing more 
information about the legislation that includes aviati on into the EU's emissions trading system.  There 
are opportunities in the EU legislation to remove all incoming flights from third countries from its 
scope, in the event that other countries implement th eir own aviation and climate measures.  In this 
context, the EU would be interested to lear n more about Chinese policies to address aviation 
emissions.  
CHINA III 
Secretariat Report 
 
I. ECONOMIC ENVIRONMENT 
(2) RECENT DEVELOPMENTS  
(i) Crisis and Policy Response 
Question 1 
Please describe the long-term impact of the global fi nancial crisis and European  sovereign debt crisis 
upon the economy of the EU.  
Answer  
The economic recovery in the EU continues to make headway. GDP growth for 2011 is forecast at 
1.8% in the EU and 1.6% in the euro area and GDP in both regions is expected to continue growing 
at around 2% in 2012.  Despite the positive prosp ects for economic growth in the euro area as a 
whole, uncertainty remains high.  Geopolitical te nsions in the Middle East and Northern Africa, 
commodity price developments, and potential repercu ssions from economic impact of the earthquake 
and tsunami in Japan represent important sources of risks  to the growth and inflation outlook.  But, 
the most important risk stems from the euro area  sovereign debt markets where the situation remains 
very difficult.  While the situation in Ireland and Po rtugal is improving, financial markets continue to 
display high volatility and risk premia because of  lingering concerns about the Greek sovereign debt 
crisis as well as the way the eu ro area responds to it.  At the European Council of 23-24 June 2011 
and the Eurogroup meeting of 11 July 2011, th e European leaders and finance ministers strongly 
restated their commitment to do w hatever is necessary to safeguard th e financial stability of the euro 
area as a whole.  
As we are in the middle of a crisis, it is very d ifficult to assess its long term impact on the economy at 
this stage.  
Question 2 
Please indicate the effectiveness of the currently  adopted measures and areas that need further 
improvement. 
 
Answer 
While the EU remains a wealthy area, its economic growth in the past decade has been weak by 
international standards, pointing to structural weak nesses in the EU before the crisis.  In the good 
years preceding the crisis, several EU Member States d eviated from the basic principles of prudent 
fiscal policy making, and macroeconomic imbalances c ontinued to build up.  The European economy 
is slowly emerging from the deepest recession in de cades, which wiped out on average four years of  
growth.  The crisis has taken a heavy toll on Europe 's societies with a sharp rise in unemployment. 
The crisis had a dramatic impact on public finances,  and led to a sharp drop in investment.  Although 
all the Member States have been hit by the crisis, the situation di ffers significantly across the Union 
both in terms of the public finances situation and ext ernal competitiveness.  Th is calls for tailor-made 
policies.  WT/TPR/M/248/Add.1 
Page 135 
 
 
  Fiscal consolidation remains a key priority for EU  Member States.  An annual improvement in the 
structural budget balance of 0.5% of GDP - the c onventional benchmark of the Stability and Growth 
Pact – would clearly be insufficient in many EU Member States to bring the debt to GDP ratio close 
to the Treaty-based threshold of 60% in the foreseea ble future.  Fiscal poli cy makers in the EU face a 
double challenge:  putting fiscal policy back on a su stainable path, while fostering economic growth 
and employment.  Successful fiscal consolidation rest s on five interrelated el ements: the composition 
of fiscal adjustment, the credibility of the policy strategy, the institutional context, complementary 
policy initiatives and the burden  sharing across society. 
Balance sheet repair in the banking sector is essential to improve cost efficiency, restore 
competitiveness, return to normal lending, which will pave the way to reco very.  A swift exit from 
sizable public support to banks will remove possibl e distortions to competition in the financial 
industry.  Confidence in the banking sector is a prere quisite for maintaining financial stability.  The 
crisis exposed a gap in the EU regulatory framewor k for the banking sector and strengthened the case 
for action at EU level.  A permanent "European Stability Mechanism" will be  established by euro 
area Member States to safeguard the financial stability  of the euro area as whole.  Basel III rules 
imposing tougher capital requirements on banks will enhance macro-financial stability. 
Structural reforms serve two goals: enhancing grow th, and preventing or correcting imbalances.  In 
the absence of resolute policies, pot ential growth is likely to remain weak, at around 1½%, in the 
coming decade, compared with 1.8% in 2001-2010.  Urgent actions are required both at national and 
EU level.  Progress with structural reform can ge nerate significant gains in terms of increasing 
growth and creating jobs.  Correcting macro-economic  imbalances is a key condition for growth and 
is particularly relevant for the euro area.  Fo r Member States with large current account deficits, 
weak competitiveness and weak adjustment capacity, la rge price and cost adjustments will be needed, 
alongside measures supporting the reallocation of la bor across firms and sectors.  In Member States 
with large current account surplu ses, the sources of persistently weak domestic demand need to be 
identified. 
More information on the policy meas ures taken by the EU can be found in the Annual Growth Survey 
at http://ec.europa.eu/economy_finance/articl es/eu_economic_situation/2011-01-annual-growth-
survey_en.htm. 
 
Question 3 
Please also provide projections for the economic tre nds of this year and next, and explain the main 
factors that arrest the economic recovery. 
 
Answer 
Europe's gradual recovery continues. EU GDP is expected to grow by around 1¾% this year and 
close to 2% in 2012.  However,  the recovery remains uneven across countries.  Moreover, despite 
some improvement in labour markets, the prospect is  for a rather jobless recovery.  HICP inflation is 
also set to increase over the co ming two years.  The trend in public finances is positive as deficits 
have fallen across most EU countries, but pub lic debt levels remain unsustainably high.  
The full Spring 2011 European economic forecast which summarizes the Commission's views on the 
economic trends in the coming years can be fou nd at:  http://ec.europa.eu /economy_finance/eu 
/forecasts/2011_spring_forecast_en.htm#abstract. 
 
Question 4 
With weak aggregate demands, divergent econom ic trends of member States and exacerbating 
government debt burden, please explain how the EU  can achieve both a lasting economic recovery 
and a robust fiscal and financial position across its member States.  Answer 
Please see our replies to questions 1-3.  WT/TPR/M/248/Add.1 
Page 136  
 
 Following the onset of the global financial crisis in 2008, advanced economies such as the US and the 
EU injected huge liquidity into the market.  This overabundance of liquidity is transmitted to 
emerging economies by means of trade, finance and market expectation, which allegedly contributes 
to the inflation rise in developing countries, including China.  
 Question 5 
What is the EU's main policy orientation in balancing the relationshi p between promoting the 
economic recovery and controlling inflation?  
 
Answer  
It is the primary task of the European System of Ce ntral Banks to maintain pr ice stability according to 
article 127 of the Treaty on the Functioning of  the European Union (TFEU). Article 130 TFEU 
establishes the principle of central bank independe nce for the euro area.  The policy measures to  
stimulate the economic  recovery are described in the answer to questions 1 to 3 of this third set of 
questions by China.  
 
Question 6: 
Please also provide information on what measures have  been taken and are to be taken in alignment 
with the policy orientation.  
 
Answer  
Please see our reply to question 5. 
 III. TRADE POLICIES AND PRACTICES BY MEASURE 
(vi) Contingency measures 
 (a) Anti-dumping and Countervailing Practices 
 In November 2010, the European Commission published a communication named:  Trade, Growth 
and World Affairs .  The strategic paper sketched the tr ade policy framework of the EU in the 
following five years. Pursuant to the paper, the EU would in 2011 create new policy tools besides the traditional trade remedies such as anti-dumping and countervailing to impose sanctions on countries 
that have not opened their government procurement ma rket to the EU enterprises, in order to force 
those countries to realize "reciprocal opening".  It is widely believed that this policy is mainly directed 
against emerging economies.  
Question 7  
Please make relevant clarifications on the new policy tools that are going to be created. 
 
Answer  
The EU is currently considering proposing a new legi slative instrument rela ting to the access to the 
European Union's procurement market by supp liers, goods and services from outside the EU.  
Before adopting any specific legislative proposal, the EU must conduct an exhaustive economic and 
political impact assessment of the envisaged futu re policy initiative.  In doing so, the EU must 
envisage and assess a number of different policy opti ons, which can range from refraining from any 
legislative initiative to adopting measures that would address situations when third countries 
maintain discriminatory measures against EU bidders and exclude EU goods, services and companies not covered by their international commitments.  The underlying idea behind the legislative 
instrument is not to discriminate, but to clarify  the conditions of access to the EU procurement 
market.  To this end, the real conditions of access of EU companies to third countries (with or without 
international agreement) will be analyzed.  WT/TPR/M/248/Add.1 
Page 137 
 
 
  The content of the future legislative proposal is yet not defined and will largely depend on the 
outcome of the impact assessment.  
 Question 8 
Please explain the rationale of the proposed new polic y which may be used as a tool mainly against 
emerging trade partners of the EU.  
 
Answer 
This initiative is designed to help secure and incre ase symmetry in access to  public procurement 
markets. Its key aims are to strengthen the EU negotiation position when negotiating access to public 
procurement markets and to clarify the agreed term s of access to the EU's procurement market both 
for procurements committed and not committed internationally. 
As such, the initiative is not targeting any specific  trade partner of the EU.  This new legislation 
would aim at re-balancing specifically those situations  where there is a clear gap between the actual 
access conditions of third countries, goods and servi ces to the EU's procu rement market (either on 
the basis of mutually agreed commitments or given  the de facto openness of the EU's market) and the 
lack of substantially reciprocal access of EU bidd ers to that particular third country's procurement 
market.  Potential restrictions would only be cons idered when opening cannot be envisaged with 
specific trading partners through negotiation.   In October 2009, the European Commission initiated a new anti-dumping investigation against a 
Chinese ironing-board manufacturer that had been grant ed zero-tariff in the first trial, and ruled on 
22 December 2010 that an anti-dumping duty of 35.8% shall be levied. 
 Question 9  
Please elaborate on the legal basis to launch a new anti-dumping investigation specifically against an exporter that has been granted zero-tariff in the first trial. 
 
Answer 
The legal basis is Article 5 of Council Regul ation (EC) N°1225/2009 of 30 November 2009. 
 In Agreement on Implementation of Article VI of  the General Agreement on Tariffs and Trade 1994, 
Article 2.1 defines that "a product is to be cons idered as being dumped, i.e. introduced into the 
commerce of another country at less than its normal value, if the export price of the product exported 
from one country to another is less than the comparabl e price, in the ordinary course of trade, for the 
like product when destined for consumption in the exporting country".   
Question 10  
Please explain how the EU justifies the individua l anti-dumping investigation against a specific 
enterprise under Article 2.1 of Agreement on Implemen tation of Article VI of the General Agreement 
on Tariffs and Trade 1994.  
 
Answer  
The EU sees no conflict between Article 2.1 of Ag reement on Implementation of Article VI of the 
General Agreement on Tariffs and Trade 1994 and the investigation referred to by China. 
 Question 11  
Please explain under such circumstances how to dete rmine the injury to domestic market for like 
products and how to assess the injury resulting from the products of the investigated exporter.  Please 
also describe its differences with normal invest igation in terms of assessment methods and 
investigation measures.  
 WT/TPR/M/248/Add.1 
Page 138  
 
 Answer  
Please refer to Council Implementing Regulation (EU) No 1243/2010 of 20 December 2010 imposing 
a definitive anti-dumping duty on imports of ironing  boards originating in the People's Republic of 
China produced by Since Hardware (Guangzhou) Co., Ltd.  
Question 12  
Please elaborate on the legal basis to adopt cumulative assessment in anti-dumping cases individually 
initiated against a specific enterprise.  
 
Answe 
The question is not clear.  The EU is therefore not in position to provide any answer. Question 13  
Please also indicate the relationship between the prac tice of cumulative assessment and Article 3.3 of 
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994.  
 
Answer  
The question is not clear.  The EU is therefore not in position to provide any answer. 
 Question 14  
Please explain under such circumstances how to id entify the causal link between the dumped imports 
and the injury to the domestic industry.  
 Answer  
 
Please refer to Council Implementing Regulation (EU) No 1243/2010 of 20 December 2010 imposing 
a definitive anti-dumping duty on imports of ironing  boards originating in the People's Republic of 
China produced by Since Hardware (Guangzhou) Co., Ltd. 
 Question 15  
Please describe the differences of such investiga tion with normal investigations in terms of 
assessment methods and investigation measures.  
 
Answer 
Please refer to Council Implementing Regulation (EU) No 1243/2010 of 20 December 2010 imposing 
a definitive anti-dumping duty on imports of ironing  boards originating in the People's Republic of 
China produced by Since Hardware (Guangzhou) Co., Ltd.  
Question 16  
Please also indicate the relationship in terms of non- attribution analysis between such investigation 
and Article 3.5 of Agreement on Implementation of Article VI of the General Agreement on Tariffs 
and Trade 1994. 
 
Answer 
Please refer to Council Implementing Regulation (EU) No 1243/2010 of 20 December 2010 imposing 
a definitive anti-dumping duty on imports of ironing  boards originating in the People's Republic of 
China produced by Since Hardware (Guangzhou) Co., Ltd.  On 14 May 2011, the European Commission announ ced to take anti-dumping and countervailing 
measures against coated paper exported from Chi na.  An anti-dumping duty of 4%-12% and a 
countervailing duty of 8%-35.1% are imposed upon Chinese exporters.  Pursuant to the compulsory 
assessment obligation established by case DS 379, when anti-dumping and countervailing duties are 
levied in parallel, the investigating authority need to present "evidence of wh ether and to what degree 
the same subsidies are being offset twice when anti-dumping and countervailing duties are WT/TPR/M/248/Add.1 
Page 139 
 
 
  simultaneously imposed on the same imported produc ts".  The European Commission claimed there is 
no necessity to discuss "double remedies".  Question 17  
Please elaborate on the grounds on which the Commission made the judgment and explain in detail under what circumstances the EU would fulfill its  obligations to "avoid double remedies".  
 
Answer 
Please refer to Council Implementing Regulation No 452/2011 of 6 May 2011.    
In the Agreement on Subsidies and Countervailing Measures, Article 12.7 states that "in cases in 
which any interested Member or interested party ref uses access to, or otherwise does not provide, 
necessary information within a reasonable period or significantly impedes the investigation, 
preliminary and final determinations, affirmative or  negative, may be made on the basis of the facts 
available".  
The Chinese government fully c ooperates with the EU through the anti-dumping investigation 
regarding coated paper and punct ually provided the European Commission with response papers in 
three batches.  The papers consist of over 10,000 pag es, including more than 130 attachments with 
corresponding translations and relevant remarks.  Ho wever the Commission ignored the responses 
from the Chinese government and made almost all its de terminations on the basis of facts available, 
leading to artificially crea ted subsidy margins. 
 
Question 18  
Please explain the consistency between such practice of the Commission and Article 12.7 of 
Agreement on Subsidies and Countervailing Measures. 
 
Answer 
Please refer to Council Implementing Regulation No 452/2011 of 6 May 2011. 
 The European Commission required the Chinese government or enterprises to arrange for 
investigators to engage in contact with  certain banking institutions, which are  neither the subject 
under investigation by EC nor related to the enterp rises under investigation.  As independent third 
parties, those banks have no obligations to cooperate  with the investigation.  Consequently, the 
Commission insisted on determining the s ubsidy specificity by means of BIA. 
 Question 19  
Please provide the legal basis to substantiate such requirement. 
 Answer 
Please refer to Council Implementing Regulation No 452/2011 of 6 May 2011. Following a uniform anti-dumping duty of 30.6% imposed upon bicycles manufactured in China on 
9 September 1993, the European Commission carried out a series of anti-circumvention 
investigations, interim reviews and sunset reviews which not only resulted in further lifting of the 
uniform anti-dumping duty to 48.5% but also expanded the applicable goods to both bicycle and its 
relevant parts and components.  Although there is already no possibility that the bi cycle industry in the EU would suffer lasting or 
recurred injury after 17 years of protection, th e Commission initiated a new anti-dumping sunset 
review on Chinese bicycles on 13 July 2010 and delivered  a briefing in June 2011 that the EU shall 
continue to levy the anti-dumping duty for another 3 years.  This means the EU adds 3 more years to its already super-long protection for its bicycle industry.    WT/TPR/M/248/Add.1 
Page 140  
 
 Question 20  
Please explain under such circumstances the effect iveness and rationality for the EU to continue 
protecting a specific industry of such. 
 
Answer 
This question refers to an on-going investigation the c onclusions of which will  be published in due 
time in the official journal of the European Union.  Question 21  
Please also explain the relationship between this  well-targeted, "non-sun-setting" anti-dumping 
practice of 17 years old by the EU and the fundamental goal of such measures in the WTO rules. 
 
Answer  
This question refers to an on-going investigation the c onclusions of which will  be published in due 
time in the official journal of the European Union.  
 
Question 22  
Please provide information on the latest develo pment and impact appraisal of the European 
Globalization Adjustment Fund since 2009.  
Answer  
As a specific response to the global financial and economic crisis and the resultant redundancies in 
the Member States of the European Union, the European Globalization Adjustment Fund (EGF) Regulation was amended in 2009 to allow workers made redundant due to the crisis to be eligible for 
support from the Fund, which previously had been ab le to help only workers made redundant due to 
trade related factors.  The amendment further allo wed an EGF contribution of 65 % of the total cost 
of the measures taken to help the workers to find new jobs.  The amendments included permanent 
changes to the Regulation  such as the reduction from 1 000 to 500 of the required number of redundancies and an extension from 12 to 24 months of  the implementation period for EGF supported 
measures.  
Between 1 January 2007 and 30 April 2009 (i.e. be fore the crisis derogation was introduced) the 
Commission received 15 applications, targeting EG F support to 18 430 workers and the total amount 
of the requested EGF contribution was EUR 78 776 367.  
Since the entry into force on 1 May 2009 of the revi sed EGF Regulation, the number of applications 
has significantly increased as shown below.  
 
Applications for EGF support submitted under temporary crisis derogation15 
Year Number of applications  Number of workers targeted Sum of EGF contributions 
requested (EUR) 
2009 22 19 381 99 396 898 
2010 24 24789 115 353 857 
2011 6 3 350 17 989 483 
Total 52 47 520 232 740 238 
 
 
                                                      
15 Data available as of 15.7.2011 for both tables. WT/TPR/M/248/Add.1 
Page 141 
 
 
  Applications for EGF support submitted under the trade related criterion  
Year Number of applications  Number of workers targeted Sum of EGF contributions 
requested (EUR) 
2009 4 6 569 25 990 290 
2010 6 2 586 17 126 749 
2011 0 0 0 
Total 10 9 155 43 117 039 
 
Moreover, Member States have indicated that with out the temporary derogation it would have been 
impossible to submit most of the crisis relate d applications, thus leaving about 47 000 workers, who 
suffered from the consequences of the economic and financial crisis, without EGF support.  In 
addition, the increased co-funding rate of 65 % reduced the financing burden of EGF supported measures for applicant Member States in total by about EUR 60 million for all applications submitted 
between 1 May 2009 and 31 December 2010
16. 
 
Question 23  
Please provide the number of cases with regards to anti-dumping and countervailing trade remedies 
where the EU was taken to the European Court by interested parties since 2009 and verdicts of the 
cases.  Answer 
The number of the cases that were taken to th e European Court since 2009 are listed below: 
 17 cases were lodged  in 2009; 
 14 cases were lodged in 2010; 
 3 cases were lodged in 2011 (up to day). 
The state of play of the cases is available online on  the website of Court of Justice of the European 
Union (link:  http://curia.europa.eu/jcms/jcms/j_6/). 
 
(3) MEASURES AFFECTING PRODUCTION AND TRADE  
(i) Business Framework and Foreign Investment regime 
Question 24  
Please describe the latest changes since 2009 of incen tive and restrictive measu res the member States 
have taken regarding FDI.   Answer 
The free movement of capital under Article 63 TFE U does not exclude the application of exceptions 
explicitly stipulated in the Treaty or establishe d by the Court based on them.  Article 65(1b) TFEU 
allows Member States to take measures  which are justified on grounds of public security and public 
policy  (for examples of MS screening schemes for foreign investment based on this objective).  
According to CJEU jurisprudence,  exceptions to the fundamental Trea ty principles must be construed 
narrowly and the measures taken must be suitable, proportionate, transparent, and subject to judicial 
review.  In addition, the CJEU has established (e .g. case C-54/99, Scientology, para. 17) that 
"…those grounds must be interpreted strictly, so t hat their scope cannot be determined unilaterally by 
each Member State without any control by the Community institutions."  Purely economic reasons 
cannot provide a justification. Moreover, Member States'  decisions are subject to judicial review in 
national courts and also by the CJEU.  
 
                                                      
16 Excluding applications withdrawn or rejected. WT/TPR/M/248/Add.1 
Page 142  
 
 Germany amended its Foreign Trade and Payments Act (§ 7 Aussenwirt schaftsgesetz, as published in 
BGBl I, p. 1150, of 27/05/200917).  The law amendment has the objective of investigating and 
prohibiting the acquisition of resident companies by  non-EU acquirers, if this is indispensable in 
order to protect the public order or security of  the Federal Republic of Germany.  The existing 
examination of certain foreign acquisitions of companies that manufacture or develop war weapons, 
certain defence equipment or cryptosystems, is thereby extended.   
The investment regime remains open.  The amendmen t is solely intended to ensure that there is an 
instrument, in individual cases and according to th e proportionality principle, which allows to 
investigate problematic investments with regards to the security of the Federal Republic of Germany 
(to be interpreted strictly like exceptions to EU Treaty freedoms). 
 
France:  Under France's Decree 2005-1739, certain investments in "sensiti ve" sectors related to 
security and defence from companies whose cor porate headquarters are outside EU or EEA are 
subject to notification and review (Art. R153- 1 and 2, Monetary and Financial Code).  These 
investments are reviewable if they result in:  control of a firm with corporat e headquarters in France; 
acquisition of a branch of a firm w ith corporate headquarters in France;  or acquisition of more than 
one-third of the capital or voting rights of a firm with corporate headquarters in France.  Investments 
in sensitive sectors from companies whose corpor ate headquarters are in the EU or EEA are also 
subject to review, but under less stringent conditions.  There is currently an infringement procedu re against France.  The European Commission has 
formally requested France to modify Decree 2005-17 39 of 30 December 2005 as it is concerned that 
some aspects of this decree are in contradiction with EU law.  
Poland:  The Treasury may exercise the right of veto against certain important strategic decisions of 
the Board of Directors (enumerated in the law) in  companies of strategic importance (electricity, 
petroleum and gaseous fuel) if the execution of such a resolution would be a real threat to 
performance, business continuity and integrity of cr itical infrastructures (Act of 18/3/2010 on special 
rights of the Ministry of State Treasury and their application in certain companies and holdings 
exercising their activities in the energy, fuel and gas sectors ).  This Act entered into force on 
1/4/2010 and abrogated the Act of Special Powers – a blanket measure, covering many sectors – which had been subject of a Commission's infringement procedure.  In the real estate sector, some acquisitions of real estate by foreign companies are subject to prior 
authorization according to the Act of 24 March  1920 on acquisition of real estate by foreigners. 
According to the Aviation law of 3 July 2002,  foreign enterprises require authorization for the 
investment in an enterprise managing an airport, and  foreign enterprises are not allowed to establish 
an airport.  The authorization to manage the ai rport is given to the company with foreign 
participation if it is controlled by Polish investors. 
 
Question 25 
Please provide information on the restrictive revi ew regime of member States on FDI (including 
scope of the review, review authorities, review cr iteria and procedures, etc.), and relevant cases  
including those that the investment or trade ha d to be abandoned due to failure to go through the 
review.  Answer 
Member States have put in place mechanisms to veto third country investments on national security grounds.  
Out of 27 Member States, 11 have no regime for controlling the inflow of 3
rd country investment 
(Cyprus, Czech Republic, Estonia, Hungary, I reland, Latvia, Luxembourg, Malta, the Netherlands, 
Romania, Slovakia) and 5 Member States limit thei r regime to the production of or trade in arms, 
                                                      
17 http://bundesrecht.juris.de/awg/BJNR004810961.html. WT/TPR/M/248/Add.1 
Page 143 
 
 
  munitions and war material and thus to sectors, which may in principle be excluded from the 
application of Treaty rules under Article 346 TFEU (Aus tria, Denmark, Finland, Slovenia, Sweden).  
11 Member States (Belgium, Bulgaria, Germany, Spai n, France, Greece, Italy, Lithuania, Poland, 
Portugal, and United Kingdom) have more general regimes for controlling the inflow of 3rd country 
investment; and these regimes differ significantly.  For example, the sectors covered differ widely, 
from blanket measures with no sectoral limitations  (Bulgaria, Germany, Greece, Finish draft act, 
United Kingdom) to specifically listed sectors like energy, transport, telecommunications (France, 
Poland, Italy, Lithuania), only one sector (gas) or individually protected companies like Portugal 
Telecom (Belgium, Portugal). 
Only the EU Member States would have precise data concerning relevant cases including those where 
the investment or trade had to be abandone d due to failure to go through the review. 
However, according to our information there a re no transactions rejected by the Member States. 
 (iv) Government Procurement  
Question 26  
How does the EU define the coverage of contract ing authorities of the regional or local public 
authorities in its GPA open list?  Does the contracting authorities of the regional or local public authorities cover local governments at all levels be low the central government?  Do the regional or 
local public authorities refer only to the administrative  authorities or they also cover local legislative 
and judicial bodies?  Answer 
The EU's standard commitments in the GPA at the regi onal and local level take the form of a catch all 
clause, meaning that all regional and local authorities of the EU's 27 Member States (down to the smallest level) are included. Given  the very large number of entities falling under this definition, it is 
not possible to include a list of such entities.  
Legislative and judicial bodies do not fall under this category. The offer of a catch all clause covering all regional and local entities is subject to the readiness of 
other parties to also undertake ma rket access commitments on their own regional and local entities, 
when they exist.  Short of a possibility of a reciprocal  market opening in this field, the EU may either 
not offer the access to the regional and local entities'  procurement or to offer only a part of it.  
 
"Bodies governed by public law as defined in Directive 93/37" is mentioned in the EU's list of entities. 
 Question 27  
Please elaborate if all the bodies governed by public la w fall into the scope of the list. Are the list of 
entities covered by the Directive 93/37 illustrative or  exhaustive?  Are the public legal persons not 
placed in the list also obliged to  follow the GPA open obligations?  Please explain if all the bodies 
governed by public law fall into the scope of the list, why the entity list and catalog under Directive 
93/37 vary from one member state to another.  
Answer 
As far as bodies governed by public law are con cerned, the EU's commitments in the GPA take the 
form of a generic definition which is complemented  by an illustrative list of these entities in the 27 
Member States.  The coverage of these entities is stru ctured in the same manner in the EU procurement directives.  
Any entity in the EU qualifies as a body governed by  public law as long as the criteria provided under 
the definition are fulfilled.  
The EU has included the same definition in its GPA commitments under Annex 2. 
As China rightly points out, the examples of bodi es governed by public law vary from one Member 
State to another.  This is due to the diff erent legal structures in the Member States.  WT/TPR/M/248/Add.1 
Page 144  
 
 The threshold for Annex 1 is SDR130,000, and SDR 200,000 for Annex 2. 
 Question 28  
Please explain the reason for the difference. 
 
Answer 
The difference in thresholds is due to the different nature of the entities.  Traditionally (see the first 
EU procurement directives and the G ATT Code), procurement by central  authorities were the first to 
be subject to procurement rules.  Being the biggest purchasers, there wa s an agreement that their 
procurement should be opened to competition at a lo wer level than the one applicable for sub-central 
entities, which were more recently subj ect to procurement rules.  
It shall be noted that under the GPA, all Parti es apply the 130 000 SDR threshold for procurement by 
central authorities.  At the sub-central level, mo st GPA Parties have agreed to open up procurement 
at the sub-central level for purchases of  a value of 200 000 SDR and above. 
 
There exists discrepancy between the items listed in  the annex 4 services of the EU GPA list, and 
those in MTN.GNS/W/120. For example, 6122, 873 04 does not appear in the CPC numbers in W120, 
"ex 81" is used in the CPC numbers of financia l services while "82201-82206" appears in building 
cleaning and property management services but goes beyond W120.   
 Question 29 
Please explain the difference and the rationale behind it. 
 
Answer 
Ex 81 refers to CPC 81 (financial services).  The term "ex" is used to indicate that only some financial services are included under the EU's Annex 4. 
 
CPC 87304 corresponds to a sub-category of CPC 873 (investigation and security). 
 CPC 82201-82206 appear under the heading "building cleaning and property management services" as 
some cleaning services can be  provided in the context of property management services. 
 
CPC 6122 falls under the category of distribution services (m ore precisely retailing services) listed in 
MTN.GNS/W/120. 
 
Competition Policy 
 
Pursuant to the Report from WTO Secretariat, the EU in recent years has adopted a "more economics-
based approach" to carry out economic impact anal ysis on violations of competition regulations.  
 
Question 30  
Please specify the economic methods. 
 
Answer 
The European Commission has in recent years opted for a "more economic approach" in the field of 
competition law in search of more harmony betwee n the current rules of European competition law 
and insights from economic theory.  Several formalis tic legal rules have been replaced by new rules 
focussing on the economic effects in Antitrust (incl uding cartel agreements), State Aid and Mergers. 
For instance, the revision of the Merger Regulation has  led to a change of the substantive test which 
better allows relevant economic distinctions, such  as that between coordinated effects and non-
coordinated effects.  Guidelines have articulated  relevant criteria to assess both non-coordinated 
effects (e.g. market shares as "first indicato rs" of dominance, closeness of competitors, limited 
possibilities of switching suppliers) and coordinated effects (reaching terms of coordination, WT/TPR/M/248/Add.1 
Page 145 
 
 
  monitoring deviations, deterrent mechanisms).  Also  in Antitrust there has been an evolution towards 
a full-blown analysis of the relevant data on the basis of economic theory whilst at the same time assuring companies with the required level of legal certainty.  
Question 31  
Please provide information on which member Stat es restricted the application of competition 
regulations in the sector of finance during the financ ial crisis and what restrictive measures they have 
taken. 
 
Answer 
The Commission for its part emphasizes that it did not suspend the application of the competition  
rules during the financial and economic crisis.  
The Commission has repeatedly indicated the im portance of applying competition rules during a 
crisis period to avoid a negative impact on the in ternal market and subsidy races between Member 
States. On this basis and in reply to the crisi s, the Commission provided Member States with new 
State aid possibilities targeted to the specific needs of the market and aimed at facilitating companies' 
access to finance and investment means.  Howeve r, these measures have an exceptional nature and, 
therefore, they are limited in time.  As to Antitr ust, the Commission remains vigilant in pursuing 
competition infringements with fines that are sufficient  to deter anti-competitive behaviour.  Also with 
regard to mergers, the Commission maintains enforcem ent under merger control as evidenced by the 
BNPP/Fortis banking merger case wh ere remedies were required although the merger took place at a 
time when the financial crisis was at its peak. 
(vi) Intellectual Property Rights 
 
Pursuant to the Report from the WTO Secretariat, the EU has started to monitor patent transfers in the 
sector of medicine since 2010.   
 
Question 32  
Please describe what specific monitori ng measures have been taken. 
 
Answer 
To reduce the risk that settlements between orig inator and generic companies are concluded at the 
expense of consumers, the Commission has carried out further focused monitoring of settlements that 
limit or delay the market entry of generic drugs .  In that respect, the Commission has two open 
investigations with respect to patent settlement s relating to Servier (see MEMO/09/322) and 
Lundbeck (IP/10/8). 
IV. DEVELOPMENT IN SELECTED SECTORS 
(1) A GRICULTURE  
Question 33  
Please describe the changes, if any, of agricultura l product import-export policy since the last trade 
policy review (in 2009), and explain the reasons for the changes. 
 
Answer 
Trade policy of the EU is designed with respect of its WTO commitments resulting from the Uruguay 
Round.  No major changes can be exp ected until the DDA is concluded.  
All EU legislation can be consulted on the EUR-L ex website:  http://eur-lex.europa.eu/en/index.htm.  
 WT/TPR/M/248/Add.1 
Page 146  
 
 Question 34  
Please describe the changes, if any, of agricu ltural product price support policy and subsidy policy 
since the last trade policy review, and explain the reasons for the changes. 
 
Answer 
The CAP has been under a continuous process of reforms since the early 1990s. These reforms have 
already dramatically decreased the trade distorting elements of the CAP making it a market oriented 
policy.   Currently, the proposals for the CAP after 2013 a re under preparation and are expected to be 
presented in the second semester of 2011.  For furt her information please consult the Communication 
of the European Commission "the CAP towards 2020:  Meeting the food, natural resources and 
territorial challenges of the future" published in November 2010.  The EU policy within the area of agricultural domestic support will continue to be in line with its 
WTO commitments.   
Question 35  
Please provide information on regulations and restri ctions for foreign enterprises with regards to 
agricultural product production and trade in the EU. 
 
Answer 
There are no specific requirements or restrictions for foreign enterprises with regard to agricultural 
product production and trade in the EU.  
As reported, the EU has been reforming its Co mmon Agriculture Policy towards a more market 
oriented direction, including moving towards a syst em of direct payments decoupled from prices and 
production.  
Question 36  
Against the background of global financial crisis a nd grains shortage challenges, how does the EU 
evaluate its market-oriented reform on its Comm on Agriculture Policy with regard to safeguarding 
food security and raising the competitiven ess of its agricultural productivity? 
 
Answer 
The direction of the policy reflect s the strategic objectives of th e CAP which are competitiveness on 
world markets, environmental, food safety, and ani mal welfare concerns as well as a sustainable and 
dynamic rural economy.  Such policy is responding to  the needs of European society and consumers.  
The current discussions on the CAP post-2013 are focu sed on the crucial future challenges such as 
food security, competitiveness and productivity.  The legislative proposals are expected to be 
presented in the second semester of 2011.  Fo r additional information please consult the 
Communication of the European Commission "the CAP towards 2020:  Meeting the food, natural resources and territorial challenges of th e future" published in November 2010.  
 
In Para. 10. Page 105, the Secretariat's Report stated that "in 2007, the 21 different Common Market 
Organizations (COM) were replaced by a singl e one covering all sectors under the CAP and the 
separate management committees by a single committee." 
 
Question 37  
Could the EU please clarify how the single common market organization and the single committee 
operate, especially, in the context of managing different products? 
 Answer 
With the aim of simplifying the regulatory environmen t of the CAP, the horizontal legal framework for 
all direct payments was established amalgamating an  array of support systems into a single payment 
scheme by the adoption of the Council Regulation 1782/2003 of 29 September 2003 establishing WT/TPR/M/248/Add.1 
Page 147 
 
 
  common rules for direct support schemes under th e CAP and establishing certain support schemes for 
farmers (later repealed by Regulation 73/2009 of  19 January 2009).  This simplification approach 
was also followed for the market measures and rules contained in previously existing market 
regulations were amalgamated into a single legal framework- the single Common Market Organization (CMO) Regulation 1234/2007 of 22 October 2007, later amended by Regulation 
72/2009 of 19 January 2009.  In line with this admin istrative simplification, the previously existing 
management committees for separate markets we re replaced by a single committee.  
 
In Para. 14, Page 106, the Secretariat's Report st ated that "in order to qualify for Single Payment 
Scheme payments, farmers are required to keep the land in good agricultural and environmental 
conditions". 
 
Question 38 
Could the EU please clarify if any institution has b een set up to check whether the farmers, who are 
entitled to the payments, have kept their land in good conditions? If the farmer s have changed the use 
of the land, could they still be eligible for the pa yments?  If the land owners lease their land to others 
engaged in farming activity, could th e owners still be eligible for the payments or the payments will 
be allocated to the users of the land? 
 
Answer 
According to article 6 of Regulation 73/2009 of 19 January 2009, Member States have the obligation 
to ensure that all agricultural land, especially land which is no longer used for production purposes, 
is maintained in good agricultural and environmental condition.  Member States define, at national or 
regional level, minimum requirements for good agric ultural and environmental condition on the basis 
of the framework established in A nnex III of the above mentioned Regulation, taking into account the 
specific characteristics of the a reas concerned, including soil and clim atic condition, existing farming 
systems, land use, crop rotation, farming practi ces, and farm structures.  For the purpose of 
management and monitoring of payments, Member States set up integrated administration and 
control systems.  Where the statutory management requirements or  good agricultural and environmental condition are 
not complied with at any time in a given calendar year, and the non-compliance in question is the 
result of an act or omission directly attributable to  the farmer who submitted the aid application in 
the calendar year concerned, the total amount of direct  payments granted or to  be granted shall be 
reduced or excluded in accordance with the detaile d rules laid down in Article 24 of Regulation 
73/2009 of 19 January 2009.  
Payments are allocated to holders of payment entitleme nts.  We invite China to consult Chapter 1 of 
Title III of Regulation 73/2009 of 19 January 2009.   
 
In Para. 19, Page 106, the Secretariat's Report stated that "the use of internal market support program's 
has been reduced considerably over the past 20 y ears as intervention prices and the quantities that can 
be taken into intervention have been reduced". 
 
Question 39  
Could the EU please elaborate the main reason why the intervention prices have been reduced? Does 
the situation result from the reform of the Common  Agriculture Policy or from the change of the 
internal market situation? 
 
Answer 
Various reforms of the CAP since the early 1990s  have changed public intervention policy decreasing 
both the prices and buying in quantities, or completely  eliminating the system for some products.  This WT/TPR/M/248/Add.1 
Page 148  
 
 was one of the elements of the reforms targeted at reducing the trade distorting support in order to 
achieve market orientation of the CAP.   
In Para. 20, Page 107, the Secretariat's Report stated that "Intervention prices have been set for several 
other products including: durum wheat, maize, and sorghum; and paddy rice but the quantity that may 
be bought into intervention has been set at zero." 
 
Question 40 
Does it implicate that intervention prices no longer cover purchases of these products? 
 
Answer 
The public intervention prices have been set fo r these products, but the intervention buying-in 
quantity is set at zero. Actual buying-in into int ervention for these products will require a legislative 
decision from the Council of the European Union.   
In Para. 22, Page 110, the Secretariat's Report me ntioned supporting measures provided to vegetables 
and fruits. 
 
Question 41 
Could the EU elaborate its practices and experi ences with regard to production control and 
management, provision of informati on services and promoting the role of producers' association in 
order to reduce price fluctuations in these two sectors? 
 
Answer 
The EU supports recognized producer organizations (POs) operating in the fruit and vegetables 
sector through a financial contribution to the operational funds set up by the POs to finance their 
operational programmes.  We invite China to c onsult Regulation 1182/2007 of 26 September 2007 for 
all details on measures applied in the fruit and vegetables sector following the 2007 reform.  
We also refer China to the EU's DS:2 no tification G/AG/N/EEC/69 of 24 January 2011.  
 
In Para. 34, Page 110, the Secretariat's Report stat ed that "Some quotas are so small it is hard to 
consider them as commercially meaningful.  The commission noted that changes to quotas were the 
result of EU enlargements and stated that tari ff quotas are market access openings and an assessment 
of them should take this into account". 
 
Question 42  
Could the EU please clarify whether it is going to ta ke some measures to change the situation? What 
kind of measures could be adopted in this context? 
 
Answer  
In its report, the WTO Secretariat argues that th e small volume of some TRQs may render them not 
"commercially meaningful".  The EU would note that in fact the three quotas referred to by the WTO 
Secretariat have been filled at 100% (see last notifica tion), which would seem to be in contradiction 
with the WTO Secretariat's argumen t.  Conversely, the fact that a given quota is not completely filled 
in a given period does not necessarily mean that it is not commercially meaningful.  
 
In Para. 36, Page 110, the Secretariat's Report stat ed that "fill rates vary widely from one tariff quota 
to another.  In the last notification for marke ting year 2008/09 and calendar year 2009, 39 tariff quotas 
were completely used while 20 had no import at all". 
 
Question 43  
Could the EU please clarify how the fill rates vary so widely? 
 WT/TPR/M/248/Add.1 
Page 149 
 
 
  Answer  
The EU does not share the WTO Secretariat's char acterisation that fill rates vary 'widely' between 
quotas.  Different fill rates for different quotas are lin ked to the specific characteristics of the quotas 
in relation to the products and markets they target.  The fill rate of a quota depends on the specific 
market conditions in a given year, both the dema nd on the internal market and prices on markets 
outside the EU.  
 
In Para. 37, Page 110, the Secretariat's Report st ated that "the price-based SSG has been made 
operational for chicken, turkey and sugar products  almost continuously.  The EU has calculated 
trigger volumes for fruit and vegetables on a regula r basis but the volume-based SSG has never been 
implemented". 
 
Question 44  
Could the EU please explain why price-based SSG has been made more operational than the volume 
based SSG?  Answer 
Only the conditions to implement the price-based SSG were met.   Industry  
Question 45 Please provide information on any changes related to industrial policy, investment policy, laws and 
regulations, and plans in relation to the EU indust ry development following the onset of financial 
crisis, especially policy development in the area of new energy and low carbon economy.  
 
Answer 
General information on the EU's industrial policy,  including on the response to the current financial 
crisis and on the Communication "An integrated industrial policy for the globalization era" (one of the flagship initiatives of the Europe 2020 Strategy) etc is available at 
http://ec.europa.eu/enterprise/index_en.htm and h ttp://ec.europa.eu/enterprise/policies/industrial-
competitiveness /industria l-policy/index_en.htm.  
 
Concerning the development of a low-carbon economy , the European Union is making real efforts to 
reduce its greenhouse gas emissions. Over the past tw o decades, emissions have gone down by 16%, 
whereas the economy has grown by 40% over the same period.  
 
In 2007, the EU Heads of State and Government set a series of demanding climate and energy targets 
to be met by 2020, known as the "20-20-20" targets.  These are:  i) a reduction in EU greenhouse gas  
emissions of at least 20% below 1990 levels;  ii)  20% of EU energy consumption to come from 
renewable resources;  iii) a 20% reduction in primary energy use compared with projected levels, to 
be achieved by improving energy efficiency.  EU leaders also offered to increase the EU's emissions 
reduction to 30%, on condition that other majo r emitting countries in the developed and developing 
world commit to do their fair share under a glo bal climate agreement.  The core of the package 
comprises four pieces of complementary legislation: 
1. A revision and strengthening of the Emissions Trading System (ETS), the EU's key tool 
for cutting emissions cost-effectively.  A single EU-wide cap on emission allowances will 
apply from 2013 and will be cut annually, reducing the number of allowances available 
to businesses to 21% below the 2005 level in 202 0.  The free allocation of allowances will 
be progressively replaced by auctioning, and the sectors and gases covered by the system 
will be somewhat expanded.  WT/TPR/M/248/Add.1 
Page 150  
 
 2. An "Effort Sharing Decision" governing emissions from sectors not covered by the EU 
ETS, such as transport, housing, agricultu re and waste.  Under the Decision each 
Member State has agreed to a binding national emissions limitation target for 2020 which reflects its relative wealth.  The targ ets range from an emissions reduction of 20% 
by the richest Member States to an increase in emissions of 20% by the poorest.  These 
national targets will cut the EU's overall emi ssions from the non-ETS sectors by 10% by 
2020 compared with 2005 levels.  
3. Binding national targets for renewable energ y which collectively will lift the average 
renewable share across the EU to 20% by 2020 (more than double the 2006 level of 9.2%).  The national targets range from a renewables share of 10% in Malta to 49% in Sweden.  The targets will contribute to decreasing the EU's dependence on imported 
energy and to reducing greenhouse gas emissions .  A "sub target" of 10% by 2020 in all 
Member States has also been set for renew able energy use in the transport sector, where 
security of energy supply concerns are greatest. 
4. A legal framework to promote the development and safe use of carbon capture and 
storage (CCS).  The EU plans to set up a network of CCS demonstration plants by 2015 
to test its viability, with the aim of commercial update of CCS by around 2020. Revised EU guidelines on state aid for environmental prot ection, issued at the same time as the 
legislative package was proposed, enable governments to provide financial support for 
CCS pilot plants.  
If current policies are fully implem ented, the EU is on track to ac hieve its targets for 2020 of reducing 
emissions to 20% below 1990 levels and raising the share of renewables in its energy mix to 20%.  
Also, with regard to low carbon transport, the EU adopted on July 25, 2011 new legislation that 
requires that by 2015, CO2 emissions from all new cars registered in the EU should not exceed 130 
grams/km, around one-fifth below 2007 levels.  The ta rget will be gradually phased in:  in 2012 65% 
of each manufacturer's newly regi stered cars must comply, rising to 75% in 2013, 80% in 2014 and 
100% by 2015.  Manufacturers whose fleet average exceeds the limit from 2012 will have to pay a penalty for each car registered .  The Commission will develop detailed technical guidelines on how 
companies should prepare applications to have th eir eco-innovations recognized.  The automotive 
industry will therefore have a greater incentive to  invest in new technologies that reduce CO2 
emissions from new cars. 
We are currently only halfway towa rds the third goal for 2020 - im proving energy efficiency by 20%; 
much greater efforts will be needed  to meet this target and a new law has recently been proposed to 
assist this process (http://ec.eu ropa.eu/energy/efficiency/eed/eed_e n.htm).  With its "Roadmap for 
moving to a competitive low-carbon economy in 20 50" the European Commission is looking beyond 
2020 objectives and sets out a plan to meet the long-term target of reducing dom estic emissions by 80 
to 95% by mid-century as agreed by European Heads  of State and governments.  It shows how the 
sectors responsible for Europe's emissions - pow er generation, industry, transport, buildings and  
construction, as well as agric ulture - can make the transition to a low-carbon economy over the 
coming decades.  This Roadmap is part of the Europe 2020 strategy for smart, sustainable and 
inclusive growth.  More detailed information is available at:  http://ec.europa.eu/clima/policies 
/roadmap/index_en.htm  
 
Question 46  
As the EU member States vary in economic de velopment, product structure and comparative 
advantage, in the process of forming harmonized fo reign trade and liberalizing markets, how does the 
EU coordinate among its members on their trade po licies towards developing counties, including 
China?  WT/TPR/M/248/Add.1 
Page 151 
 
 
  Answer 
It is true that EU Member States vary in their ec onomic structure, and therefore close coordination is 
vital for determining EU trade poli cy in an ambitious and balanced manner. 
According to Article 207 of the Treaty of Li sbon, the European Commission is responsible for 
negotiating trade policy on behalf of the EU, but should do so in consultation with a "special 
committee" appointed by the European Council.  The Trade Policy Committee (TPC) is the "special 
committee" referred to in the Treaty.  The TPC is made up of representatives from the European 
Commission and each EU Member State, and is chaired by the rotating EU Presidency.  Through this 
Committee the Commission consults with Member States on a regular basis about all trade policy 
issues, including matters towards developing co untries and emerging market economies such as 
China. 
 The EU coordinates amongst its members through a number of other formal and informal channels. 
Specialised Working Groups deal with matters of  trade defence, services and investment, and 
particular sectors such as steel and textiles.  There is also an expert group that meets specifically to 
discuss trade and investment relations with China. 
The Commission also regularly holds public consul tations on matters of trade  policy, which are open 
to Member States as well as civil society groups and the general public.  For example, the Commission recently launched a consultation on tr ade and development policy, which will be 
followed at the end of 2011 by a Commission Comm unication outlining the agenda in this policy area 
for the coming years. 
 
Question 47  
Are there any social responsibility restrictions pl aced on the enterprises on the part of the EU? What 
could be the relevant laws, regulations and standards associated with these restrictions? 
 Answer 
The European Commission defines corporate soci al responsibility (CSR) as "a concept whereby 
companies integrate social and environmental con cerns in their business operations and in their 
interaction with their stakeholders on a voluntary bas is.  "By definition, therefore, CSR refers to what 
enterprises do in the social and environmen tal domains, above and beyond compliance with 
applicable laws.  CSR could not be comprehensivel y or effectively imposed through legislation. 
Existing EU legislation on the disclosure of non-financ ial information is however relevant to CSR.  
The Fourth Directive on annual accounts (2003/51/EC requires) enterprises to disclose environmental and employee-related information to  the extent necessary for an understanding of the 
company's development, performance or position.   
Question 48  
Please elaborate on the EU's relevant policies and laws  with regard to the incentives provided to the 
development of basic industries, for example, th e basic technology or basic material production. 
 
Answer 
It is not clear what is meant by "basic i ndustries", "basic technol ogy" and "basic material 
production" and therefore we are not in position to provide a detailed answer;  for general 
information on the EU's industrial policy please ref er to http://ec.europa.eu/enterprise/index_en.htm 
and http://ec.europa.eu/enterprise/policies /industria l-competitiveness/industrial-policy /index_en.htm 
or contact us for further information.   
Question 49  
Are there any restrictions on technology transfer or technological cooperation on the part of the EU in 
the area of key products and basic parts in the machinery industry?  WT/TPR/M/248/Add.1 
Page 152  
 
 Answer 
Please refer to website http://ec.europa.eu/enterp rise/sectors/mechanical/mac hinery/index_en.htm for 
the general information on  machinery sector, including relevant legislation.  
Dual use of EU technology is governed by Regulation 428/2009; please refer to http://ec.europa.eu/trade/creating-opportunities/trade-topics/dual-use/ 
Other relevant measures related to national security fall under individual fall into the competences of 
Member States.  Question 50  
Has the EU formulated any policies encouraging ad vanced technology research and industrialization 
in the area of automobiles?  What kind of polic ies have been put in place with regard to the 
development of new energy cars? 
 
Answer 
The EU can confirm that it has formulated a poli cy to encourage advanced technology research in the 
area of the automotive industry.  The main asp ects of this policy have been established in the 
Communication from the European Commission "Eur opean strategy on clean and energy efficient 
vehicles", adopted on 28 April 2010.  The European  regularly reports on the implementation of this 
strategy ("rolling plan") and the needed adapt ations to respond to technological and other 
developments.   
The European strategy aims to pr ovide a European framework for cl ean and energy efficient vehicles, 
including the promotion of clean and energy effic ient vehicles based on conventional internal 
combustion engines and facilitating the deployment of  ultra-low-carbon vehicles such as electric and 
hydrogen vehicles.  The strategy contains over 40 actions on a wide range of policy fields covering: 
regulatory framework for reduction of environm ental impacts, research and innovation in green 
technologies (notably the "European Green Cars Initiative"), market uptake and consumer 
information, trade and employment aspects as well as specific actions on electric vehicles such as 
standardisation, charging and refuellin g infrastructure or recycling an d transportation of batteries. 
With this purpose, the European Commission has been active to promote regulatory and standardisation activities at the international level , with relevance to the work within the United 
Nations Commission for Europe (UNECE) Agreements of 1958 and 1998, to respond to the  safety 
needs of road vehicles with electric powertrain.  We underline the adoption of the UNECE Regulation 
100 which deals with the electric safety of vehicles,  as well as the amendments to UNECE Regulations 
12, 94 and 95 on crash safety of vehicles in orde r to cover specific risks of vehicles with electric 
powertrain.  
In addition, an integrated strategy to promot e the competitiveness and sustainable growth of the 
automotive industry in the EU is also under debat e with the stakeholders under the CARS 21 process 
(Competitive Automotive Regulatory System fo r the 21st century), which aims to make 
recommendations for several public policy area s impacting on the automotive industry. 
All relevant documents and reports are publicly available at DG Enterprise and Industry portal, 
namely at the site: 
http://ec.europa.eu/enterprise/sectors/autom otive/competitiveness-cars21/index_en.htm  
 Question 51 
Please provide information on the subsidies the EU provides to the ship-building industry. 
 Answer 
Some Member States provide State aid to ship ya rds.  Aid comes in different forms: aid for 
innovations, regional aid for investments and modernising yards and export credits (in line with the applicable OECD provisions). Moreover, there a re guarantee schemes in place for shipbuilding but 
these are mostly aid free as the beneficiary pa ys a market oriented fee for the guarantee. WT/TPR/M/248/Add.1 
Page 153 
 
 
  Question 52  
Please elaborate on the preferential policies and subs idies the EU has made to support the solar 
photovoltaic industry. 
 
Answer 
As explained in our reply to question 45, the EU's 20-20-20 targets include a renewable energy 
objective which will more than double the share of  renewable energy by 2020. In the electricity 
sector, Member States expect the share of renewab le energy to increase to 34% (EU total), and 
photovoltaic electricity to more than double to almost  7% by 2020 (EU total).  These targets require 
Member States to take all necessary actions and measures to ensure the objectives are reached. 
However, the targets are for renewable energy overa ll, and are technology neutral (not PV-specific). 
In terms of stimulating clean energy technology d evelopment the EU has also created the "Strategic 
energy technology Platform", including  a photovoltaic industrial initiative 
(http://www.eupvplatform.org/) to bring industr ial, governmental and academic stakeholders 
together.  
Whilst the broad thrust of policy promoting the development of photovoltaic production comes from 
these EU targets, the bulk of support measures or subsidies are applied at Member State level. The 
elements of financial support at Community level  are limited to some R&D technology funding or 
demonstration plant finance (though this is more applicable for technologies other than PV).   Question 53  
China would like to draw the EU's attention that  its directives, inter alia, RoHS, WEEE, Eup and 
REACH have created immense difficulties for the exporting enterprises in the developing countries 
and would like the EU to explain how it has en sured that these Directives should not create 
unnecessary barriers to international trade? 
 
Answer 
The EU would like to recall that Article 2.2  sente nce 2 of the TBT Agreement provides that, in order 
not to create unnecessary barriers to international trade, technical regulations shall not be more 
trade-restrictive than necessary to fulfil a legitimate objective.  All EU measures China referred to  have the legitimate objectives of ensuring the functioning of the 
internal market and a high level of protection of  human health and/or the environment.  The 
obligation not to create unnecessary  obstacles to trade does not mean that industry (from the EU and 
third countries) has not to make any efforts to achiev e the level of protection the EU is aiming at, as 
long as the requirements do not create unnecessary or disproportionate burden.  In order to ensure 
that the high level of protection the EU is aiming at does not create unnecessary and disproportionate burden to industry, the EU has carried out for a ll the measures mentioned, extensive stakeholder 
consultations, including those of third countri es, impact assessments and has also notified the 
measures under the TBT Agreement.  All information collected, as well as discussions in the 
legislative procedure have led to the measures refer red to. In this regard, the EU also refers to the 
OECD Trade Policy Working Paper on "Trans parency mechanisms and non-tariff measures: case 
studies" which includes a section on RoHS and WEEE, and is available at the fo llowing website of the 
OECD:  
http://www.oecd.org/officialdocuments/publicdisp laydocumentpdf/?cote=TAD/TC/WP(2010)4/FINAL
&docLanguage=En . 
 
The EU would also like to point out that EU le gislation is equally applicable to domestic and 
imported products as well as to domestic and foreign suppliers.  Special attention is paid to the 
consequences of EU measures to international trade  and to the needs of SMEs in the development of 
EU measures and a specific "SME test" is integral part of the impact assessments carried out at EU 
level.  Finally, the EU would like to point out th at the EU provides extens ive support and technical 
assistance to developing countries, with particul ar attention to the needs of their SMEs. 
 WT/TPR/M/248/Add.1 
Page 154  
 
 Question 54  
The certification scheme like GS\NEMKO and TCO implemented in some member States is rather 
burdensome for enterprises from developing countries trying to enter into the EU market. Please 
explain how the EU has ensured that these requi rements should not create unnecessary barriers to 
international trade?  Answer 
The CE marking is the only marking of conformity i ndicating that a product is in conformity with the 
EU harmonization legislation providing for this marking.  Other markings may be used as long as they contri bute to the improvement of consumer protection, 
are not covered by EU harmonization legislation and their affixing does not impair the visibility, 
legibility and meaning of the CE marking.  Question 55  
The EU's Directives on battery, package and cadmium contains requirements that are overly stringent 
compared with international norms.  Please explai n how the EU has ensured that these requirements 
should not create unnecessary barriers to international trade? 
 
Answer 
EU Directive 2006/66/EC on batteries and accumulato rs, which includes certain restrictions related 
to cadmium, and EU Directive 94/62/EC on packagi ng were adopted with the aim of achieving a high 
level of protection for health and the environment.  The level of protection has been properly justified 
in the preparation and legislative discussions of th e text.  Care has been ta ken to ensure that these 
measures are not discriminating against importers,  and do therefore not pose unnecessary barriers to 
trade.  The EU has together with the US authoriti es contracted a study on non-tariff measures, which 
confirms: 
"Environmental concerns are an important priority for the EU, which is reflected in the fact that its 
environmental regulations are often far ahead of those in other countries. [...] Applied 
indiscriminately to EU and US producers, they crea te additional costs for US firms who want to 
export to the EU (who also have to adhere to different US standards, and if exporting to other 
countries, to the standards of these countries)."  The same logic applies to trade between the EU and China.  
The study is available on the website of the Eu ropean Commission:  http://trade.ec.europa.eu/doclib 
/docs/2009/december /tradoc_145613.pdf  
 In addition, when revising environmental legislati on, the EU makes the necessa ry efforts to ensure 
that the measures taken do not create unnecessa ry barriers to international trade, and that 
international transparency is granted.  In this regard, the EU refers to the OECD Trade Policy 
Working Paper on "Transparency mechanisms and non-tariff measures: case studies". The procedures applied to the examples described he re, the RoHS and WEEE Directives, is also 
applicable to other EU environmental legislation. The OECD paper is available at the following website of the OECD:  
http://www.oecd.org/officialdocuments/publicdisp laydocumentpdf/?cote=TAD/TC/WP(2010)4/FINAL
&docLanguage=En. 
 Question 56  
Could the EU please elaborate and provide inform ation on the pharmaceutical industrial policies? 
 
Answer 
The Commission attaches great importance to a viable healthcare sector, in particular with regard to 
the pharmaceuticals industry. As far as concrete initi atives in this field a re concerned reference could 
be made to the hyperlinks provide below. WT/TPR/M/248/Add.1 
Page 155 
 
 
  Most recent activities concern in creasing the quality/safety of medicinal products and an on-going 
review of the European legislation on the transparen cy of pricing and reimbursement decisions which 
fall into the competences of Member States. Please see: http://ec.europa.eu/enterprise/se ctors/healthcare/index_en.htm. 
http://ec.europa.eu/health/human-use/quality/index_en.htm. 
http://ec.europa.eu/health/human-use/ quality/fake-medicines/index_en.htm.  
 
Question 57  
The new GMP has entered into fo rce in China in 2011 , which is  basically in line with the 
international standard. Does the EU standard manage ment system allow for simplification of approval 
procedures in GMP certification for the purpose of fac ilitating trade? If so, it is in the interest of both 
China and the EU that the EU consider acco rding such treatment to Chinese enterprises. 
 
Answer 
The EU welcomes the new GMP rules entering into force in China, in line with international 
standards.  We are convinced that this will facilitate  the import of active substances in the European 
Union.  However, the EU would like to point out that the Union has recently adopted new rules on the 
quality of starting materials.  The new legislation on falsified medicines cont ains new provisions to 
ascertain that all starting materials, independently  of the source, are in compliance with high 
standards of good manufacturing practices. Active subs tances will only be imported into the EU when 
they are accompanied by a written confirmation from  the competent authority in the third country. 
This written confirmation will have to demonstrate that  the manufacturing site is in compliance with 
GMP equivalent to EU GMP and is subject to cont rols including inspections.  In parallel, the 
legislation foresees a possibility to waive the written confirmation if the third country is listed by the 
Commission.  To this end and upon request by the third country, the European Union will have to 
assess the regulatory system applicable in the third country to ensure a level of protection of public 
health equivalent to that of the Union. The obligation of the written confirmation will ente r into force within 2 years.  Furthermore, the 
Commission has now to work on the definition of criteria to assess third countries. Please find enclosed the new Directive adopted on 1 July 2011. http://ec.europa.eu/health/files/eudral ex/vol-1/dir_2011_62/dir_2011_62_en.pdf. 
 
Question 58  
Please provide information on the EU's policies, standards and conformity assessment procedures in 
the area of chemical products management and hazardous materials control management in electronic and electrical products.  Answer 
For an overview of EU policies and regulatory approach in the above two areas, please refer to the 
following websites:  Chemical products:  http://ec.europa.eu/e nterprise/sectors/chem icals/index_en.htm. 
 
Hazardous materials control management in electronic and electrical products: http://ec.europa.eu/environmen t/waste/rohs_eee/index_en.htm. 
 Question 59  
Please elaborate on the EU's carbon reduction polic ies and formulation of relevant technology 
standards. 
 WT/TPR/M/248/Add.1 
Page 156  
 
 Answer 
To prevent the most severe impacts of climate c hange, scientific evidence shows that the world needs 
to limit global warming to no more than 2 C above the pre-industrial temperature.  To stay within this 
ceiling, it is necessary to halt the rising trend in global greenhouse gas emissions before 2020, at 
least halve global emissions by the middle of this century and continue cutting them thereafter.  The 
EU is showing the way forward through its strategy  to fight climate change.  Initiatives it has taken to 
cut its climate emissions include: 
 The EU Emissions trading system (EUETS), laun ched in 2005. It covers around 50% of EU CO2 
emissions from large energy intensive industry installations, power and heat generation and from 
2012 from aviation.  It sets a collective cap on tota l emissions from installations covered and allows 
pollution allowances used to comply  with the law to be traded.  A carbon price is set through this 
market which creates an incentive now and into the long term for companies to reduce emissions and 
to invest in low carbon technologies.  
 Bringing about energy saving by continually impr oving the energy efficiency of buildings and a 
wide array of equipment and household appliances,  promoting co-generation and improving energy 
services on offer;  
 Mandating increased use of renewabl e energy sources, such as wind, solar, hydro and biomass, 
and of renewable transport fuels, such as biofuels;  
 Supporting the development of carbon capture an d storage (CCS) technologies to capture and 
geologically store CO 2 emitted by power stations and other large installations, including by 
establishing a legal framework for CCS, as well as  funding opportunities fo r commercial-scale CCS 
demonstration projects (see below);  
 Developing a comprehensive EU adaptation strategy  that strengthens Europe's resilience to  
climate change.   Some other major EU initiatives in supp ort of low carbon technologies include: 
 
 the NER 300 process, covering 300 million allo wances (depending on carbon price, worth 
between EUR 4 and 5 bn) reserved in the new entran ts reserve of the EU ETS for the financing of 
commercial scale CCS and innovative RES demonstrati on projects;  NER 300 aims to fund at least 8 
CCS and at least 34 RES demonstration projects; 
 the European Economic Recovery Program, whic h allocated € 1 billion to CCS demonstration 
and €565 million to offshore wind demonstration; 
 the Strategic Energy Technology Plan (SET Plan ) which aims at accelerating the development 
and deployment of cost-effective low carbon tec hnologies and builds on an extensive program for 
research, development and demonstr ation of low carbon technologies. 
 
At international level, in 2007 EU leaders endorse d an integrated approach to climate and energy 
policy and committed to transforming Europe into  a highly energy-efficient, low carbon economy. 
They made a unilateral commitment that Europe w ould cut its emissions by at least 20% of 1990 
levels by 2020.  This commitment is being implemen ted through a package of bi nding legislation.  The 
EU has also offered to increase its emissions reduc tion to 30% by 2020, on condition that other major 
emitting countries in the developed and developing world commit to do their fair share under a future 
global climate agreement.  
 Question 60 
Does the EU have price controls on urban water supply, sewerage treatment, waste management and 
high value medical consumable material manage ment? If yes, please provide information on the 
specific measures and the legal basis. 
 
Answer 
There is a legal obligation under the Water Fr amework Directive 2000/60/EC(OJ L 327, 22.12.2000, 
p.1) to introduce water pricing policies for water services (including inter alia water supply, sewage WT/TPR/M/248/Add.1 
Page 157 
 
 
  collection and sewage treatment) which ensure refl ection of the cost recovery principle.  This 
provisions aims at certain minimum prices ensuring  the wise use of water as a limited resource; it 
does not establish a maximum price for water supply or  sewerage.  In defining their pricing policies, 
countries may have regard to the social, environmen tal and economic effects of the recovery as well 
as the geographic and climatic conditions of the reg ion or regions affected (Article 9(1) last 
sentence). 
 As for waste management, there are no price contro ls under EU waste legislation in the classical 
sense (to keep prices low).  A specific rule for land filling applies to ensure that the prices charged by 
landfill operators for waste dis posal cover certain costs (Article 10 of Council Directive 
1999/31/EC(OJ L 182, 16.7.1999, p. 1.) on landfill of waste).  According to this provision, EU 
Member States shall take measures to ensure that a ll of the costs involved in the setting up and 
operation of a landfill site, including as far as po ssible the cost of the financial security or its 
equivalent, and the estimated costs of the closure a nd after-care of the site for a period of at least 
30 years shall be covered by the price to be charged by the operator for the disposal of any type of 
waste in that site. 
 Question 61  
Could the EU elaborate on its management requirements for the import and export of re-fabricated 
products?  What kind of policy requirements a nd supporting measures have been put in place? 
 
Answer 
Generally speaking, there is no separate regulat ory policy for re-manufactured goods in the EU. 
Hence, as a general rule, re-manufactured goods are in  principle subject to th e same import or export 
requirements as any other goods. Specific regimes may nonetheless be found in certain areas, for 
instance in the case of refurbish ed equipment medical devices.  
 
ICT Industry  Question 62  
Please indicate the policy orientation, if any, of the EU in utilizing the ICT technology to promote the 
advanced manufacturing industry.  Answer 
There is no specific EU policy as regards the pr omotion of ICT technology in the advanced 
manufacturing industry.  However, in the 7th Fr amework Programme's IST Programme, there is one 
project that may be linked to the question, namel y the "Factories of the Future" initiative, or the  
public-private partnership "Smart Factories:  ICT for agile and environmentally friendly 
manufacturing".  With a total bud get of €35 million, the initiative aims at helping EU manufacturing 
enterprises, in particular SMEs, to improve their technological base across a broad range of 
manufacturing sectors.  It will help European in dustry to meet the increasing global consumer 
demand for greener, more customised and higher quality products.  The budget envelope for this 
action is €1.2 billion with half of the funds coming fr om industry.  For more information, please see: 
http://www.manufuture.org/manufacturing/?page_id=30. 
And: http://www.manufuture.org/manufacturing/wpcont ent/uploadscontent/uploads/FoF_PPP_Roadmap_
Final_Version.pdf.  
Question 63  
Please provide information on foreign investment in the EU telecommunication market, including 
major source countries of foreign investment, the number of foreign-owned telecommunication 
companies in the EU, as well as their business scope, turnover, number of users and market shares. 
 WT/TPR/M/248/Add.1 
Page 158  
 
 Answer 
There is no such information available. For furth er information on the te lecommunication markets in 
the Member States, please see the latest Member State reports as annexes to the annual 
Implementation Report by the European  Commission.  It can be found on: 
http://ec.europa.eu/information_society/poli cy/ecomm/library/communications_reports/annualreports
/15th/index_en.htm  
 Question 64  
Please provide information on the fees and the collection criteria used in open telecommunication 
business in the EU, including license fees, frequenc y fees, code number fees, regulatory fees. 
 Answer 
There is no such information available.  The po ssible source of information for such detailed 
information would be the Member States' national regulatory authorities.  
Question 65  
Could the EU please indicate if there are any chang es on the policies and regulatory directives with 
regard to foreign investment in the area of telecommunication since 2009? If yes, please provide information on the new or amended Directives and their main contents. 
 
Answer 
The EU can confirm that the last legislative changes introduced to the European Union regulatory 
framework on electronic communication dates from December 2009.  
 Question 66  
Please provide information on the industry developmen t, investment requirement, development plan 
and any laws and regulations relating to the areas of  cloud computing, the internet of things, mobile 
internet, digital contents and outsourcing of software and information service. 
 
Answer 
The regulatory framework governing the EU elect ronic communications market can be found on: 
http://ec.europa.eu/information_society/tl/policy/index_en.htm. 
 
Question 67   
Could the EU elaborate on the policies and pr actices in supporting small and medium-sized 
enterprises, including those engaged in software and information services?  Answer 
For an overview of EU policies in support of SMEs  across sectors, please refer to the following 
webpages: http://ec.europa.eu/enterprise/ policies/sme/index_en.htm. 
http://ec.europa.eu/enterprise/polici es/innovation/support/index_en.htm. 
 
Question 68 Could the EU provide informati on on regulations, policies and practices in the area of government 
procurement on information technology and services?  
 
Answer  
There are no specific regulations, policies or prac tices which apply to procurement of information 
technology and services in the EU.  The rules of the EU procurement directives fully apply to this type 
of procurement.  
 WT/TPR/M/248/Add.1 
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  Question 6 
Could the EU elaborate on its policies and practi ces in the anti- monopoly area towards software and 
information services?  
 
Answer 
Information and Communication Technologies (ICTs ) are one of the key drivers for smart, 
sustainable and inclusive growth, according to the "Europe 2020" economic strategy.  The Commission's Directorate-General for Competition closely monitors the in formation industry, 
consumer electronics and internet sectors to ensure  that market players comply with EU competition 
law.  The focus here is on stopping anti-competitive behaviour, to protect i nnovation and consumer 
choice and ensure equal opportunities to compete.  Such is reflected in the landmark cases against 
Microsoft for refusing to supply interoperability  information to rival server vendors and tying 
Windows Media Player to Windows.  The Commissi on also ensured that consumers have choice in 
deciding on a variety of web browsers that can run under Windows in the EU.  In the Intel case, the 
Commission imposed a €1.06bn fine and obliged Inte l to correct a situation in which it abused its 
dominant position on the x86 central processing unit (CPU) market by granting anticompetitive 
rebates and making payments to delay / stop deployment of competing products.  
 Question 70  
Please elaborate on the EU's rules and regulations, practices in the area of information security and 
please indicate what kind of impact they could exercise on its trade policies?  Answer 
The issue of information security  is a competence of the EU Member States and not that of the 
European Commission; further information should  be sought from the Member States directly. 
 
(IV) DEVELOPMENTS IN SELECTED SECTORS 
(2) T RADE IN SERVICES  
In Para 50, Page 116, the Secretariat's Report stated  that "the Directive on Services in the Internal 
Market (the Services Directive) was adopted in  December 2006, and the EU member States were 
provided a three-year transitional period to tran spose the Directive into national legislation." 
However, implementation of the Directive by memb er States has been inconsistent and incomplete. 
 
Question 71  
Could the EU please specify in detail the progress achiev ed by its member States so far with regard to 
the adoption and implementation of the Services Directive?  Answer 
The regulatory framework applicable to services in the EU has improved considerably with the 
implementation of the Services Directive.  
In addition to adopting legislation implementi ng the general principles and provisions of the 
Directive in a horizontal manner, most Member States have undertaken a thorough examination of the 
requirements they imposed on service providers wanting to establish in their territory or wanting to 
provide services there on a temporary basis.  M any Member States have abolished or modified 
requirements that were found to be discrimi natory, unjustified or disproportionate.  
To give a short illustration of the concrete results of this work, important progress has been made as 
regards prior authorization schem es – one of the most common requirements imposed on service 
providers.  Sector-specific authorization schemes have been abolished or simplified in a number of 
key economic sectors.  For instance, in the retail sector there have been significant improvements in WT/TPR/M/248/Add.1 
Page 160  
 
 particular as regards the conditions for the openi ng of large and medium-sized retail establishments. 
"Economic needs tests" (such as the making of the granting of an authorization subject to proof of the 
existence of a market demand) in authoriza tion regimes applicable to retail services have been 
eliminated in many Member States.  Others have introduced in their zoning regulations an explicit 
prohibition of such practices.  Furthermore, so me Member States have raised the thresholds above 
which retailers need to apply for an authorization,  thus facilitating the establishment of smaller 
retailers. In addition, the criteria for the granting of authorizations have often been clarified and/or 
simplified. Authorization schemes applicable to the retail of specific products have in a number of 
occasions also been abolished, modified or replaced by declaratio ns.  The regulatory framework for 
other forms of retail such as itinerant sales in many Member States has also been simplified. There 
has been a trend in a number of Member Stat es to replace authorizations by declarations. 
Administrative simplification efforts have also been directed to eliminate duplication of authorizations.  Other changes in legislation a ffecting the establishment of service providers have 
been particularly important in the area of th e regulated professions.  A number of legal form 
requirements (such as the obligations imposed on pr oviders of certain services to operate as natural 
persons or under specific legal forms) have been abolished or made less stringent: for example, for 
the legal professions and tax advisers, for archite cts and engineers and for accountants.  Other 
activities benefiting from this type of changes incl ude recovery of debt servi ces, real estate agents, 
travel agents and itinerant sales.  (iii) Transport 
 
(d) Air Transport 
Question 72  
Does the EU have any specific requirements or stan dards with regards to the safety expenditure on 
civil aviation?  Answer 
The EU created in 2002 by law the European Avia tion Safety Agency together with the establishment 
of common rules for civil aviation.  The Agency became operational in September 2003 and was vested with a budget to cover the cost of its activitie s.  The activities were set out in the law whereby 
the Agency was created - Regulation No 1592/2002.  Th is Regulation has been modified since then as 
the competencies of the Agency ha ve been expanded.  Today the comp etencies of the Agency cover the 
following fields of safety:  initial airworthin ess (certification of design and production) and 
continuing airworthiness including maintenance of aeronautical produc ts, parts, appliances, 
personnel and organizations;  flight crew licensing, training or ganizations and synthetic training 
devices, third country operators and aircraft operating into the EU, airports and air traffic service 
providers and personnel.  The currently applicable co mmon rules on safety - Regulation No 216/2008 
as modified by Regulation 1108/2009,  provide a) for all certification activities to be financed through 
fees and charges levied by the Agency on applicants and holders of certificates/approvals/authorizations issued by th e Agency and for publications, training and other  
services provided by the Agency to  certificates/approvals/authorizations holders, b) for all other 
activities of the Agency (rulemaking and standardisati on) these are covered by a subsidy from the EU 
budget.  Finally, the above-mentioned rules provid e for the Agency to recei ve contributions from 
European Third Countries with which the EU has  concluded agreements whereby these Countries 
adopt and implement EU law.  Question 73  
Please provide information on specific plans, if any, with regards to the EU setting up open aviation 
areas with China.  
 WT/TPR/M/248/Add.1 
Page 161 
 
 
  Answer 
With regard to a possible EU-China open aviati on area agreement (a comprehensive air transport 
agreement), the European Commission remains at th e disposal of the Chinese authorities to explore 
the potential mutual benefits of such an agreement between the EU and China.  
 
The parallel agreement proposed by the EU introduces the concept of the EU carrier and enormously 
extends the content in assigned carrier standards, wh ich may break the existing balance of air traffic 
right established by air service agreements between member States and third countries outside the EU.  
 
Question 74  
How does the EU ensure that the balance of air tr affic right arrangement already established by China 
and the EU member States is not to be broken, if the EU hopes to sign parallel agreement with China?  
 
Answer 
The question appears to relate to the so-called "Horizontal Agreement" that is currently being 
negotiated between the Chinese aviation authoriti es (CAAC) and the EU.  As the services of the 
European Commission have explained to the Chinese author ities, the sole aim of this agreement is to 
restore a sound legal basis for EU-China aviation relations by amending bilateral air services 
agreement to bring them into conformity with EU law by incorporating the principle of EU 
designation to safeguard the "freedom of establishmen t" of EU carriers within the EU single market 
as granted by the EU Treaties.  This would lega lly protect the bilateral agreements that China has 
with EU Member States. 
The Horizontal Agreement does not break the balan ce of traffic rights agreed between China and EU 
Member States.  The provisions of existing bilateral air services agreements relating to both the number of carriers that can be designated by both sides as well as the traffic rights (including any 
frequency, capacity or other traffic right restri ctions) would remain unaffected by the proposed 
amendment through the EU-China Horizontal Agreement.  
There will be no effect on the volume or balance of air traffic rights, previously agreed between China 
and an individual EU Member State, and existing bila teral Air Services Agreements will remain in 
force after amendment. 
In addition, the draft EU-China Horizontal Agreem ent contains, a number of safeguard measures to 
protect against unforeseen effects or attempts to ci rcumvent restricted traffic rights previously agreed 
under a specific bilateral agreement. 
The EU is looking forward to continuing negotia tions with China on the Horizontal Agreement and 
hope soon to find a mutually acceptable agreement.  
 
As regards to international aviation issues, it is re ported that there seems to be a tendency that during 
promotion of unilateral legislation within the EU, the international ob ligations defined by bilateral air 
services agreements signed by member States and third countries are not taken into account. In other words, the EU legislations in this  regard often overlook the internati onal obligations of member States 
and result in conflicts of laws. 
 
Question 75  
Please clarify if such tendency does exist and prov ide information on how the EU ensures prevention 
of such conflicts. 
 
Answer 
The EU and its Member States fully respect thei r obligations under international law, and these 
obligations are taken fully into account when EU legislation is being developed and adopted.  In 
particular, it is important to emphasize that the Member States themselves have to give their approval WT/TPR/M/248/Add.1 
Page 162  
 
 to proposed new EU legislation,  and are thereby able to ensure that  their international obligations 
are taken into account.  Question 76 
Please provide information on policies and regulati ons of EASA regarding bilateral airworthiness 
agreement and the schedule of EASA negotiating bilateral airworthiness agreements with other 
countries. 
 
Answer 
Under the Treaty on the Functioning of the European  Union the competence to conclude international 
treaties creating rights and obligations for the EU Member States covering all areas of safety 
including airworthiness lies with the EU Commission. According to the EU common rules on safety (see response to Question 72) EASA may cooperate with 
the aeronautical authorities of third countries in the areas of its  competence in the framework of 
working arrangements. EASA has al ready concluded a number of su ch working arrangements with 
the competent authorities of China. All working a rrangements concluded by the Agency are publicly 
accessible through its website:  http://www.easa .eu.int/rulemaking/international-cooperation-
working-arrangements.php.  Question 77 
Please provide information on the rest riction on equity ratio of forei gn investment in the EU ground 
handling agents and information on poli cies and regulations in this regard. 
 
Answer 
Regulations at EU level about ground handling services include Council Directive 96/67 on access to 
the ground handling market at EU airports.  This  Directive does not include directly requirements 
about foreign investments, but specifies that Member States may require that suppliers of ground 
handling services in Europe shall be established in  an EU Member State.  Foreign investments in 
ground handling providers that are part of an airline or  an airport may be subject to rules of foreign 
investment of airlines/airports, whether at EU or Member State level.  
 Question 78 
Please describe the latest changes, if any, of fore ign investment access into the EU airlines, airport 
equity ratio bounds and eligibility of foreign investment in this regard. 
 
Answer 
Regulation (EC) No 1008/2008 of the European Par liament and of the Council on common rules for 
the operation of air services in the Commun ity (link to the Regulation http://eur-
lex.europa.eu/LexUriServ/LexUri Serv.do?uri=OJ:L:2008:293:0003:0020:en:pdf) stipulates that no 
undertaking established in the Community shall be  permitted to carry by air passengers, mail and/or 
cargo for remuneration and/or hire unless it has been granted an appropriate operating licence.  One 
of the conditions for receiving an operating licence is that EU Member States and/or nationals of  EU Member States own more than 50 % of the undertaking and effectively control it, whether directly or 
indirectly through one or more intermediate und ertakings, except as provided for in an agreement 
with a third country to which the Community is a party (in other words, if the European Commission 
would get a mandate to negotiate a comprehensi ve air transport agreement with China, and such 
negotiations would be foreseen with China, th is issue could be subject to negotiation). 
 WT/TPR/M/248/Add.1 
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  Question 79  
Please provide information on the EU's subsidy polic ies with regards to airport operations, regional 
airlines, special international routes, general avia tion, air cargo flights, and energy-efficiency and 
emission-cutting. Please also provide brief info rmation on source of funding and implementation 
methods in this regard.    Answer 
According to Article 107 (1) TFEU "[…] any aid granted by a Member State or through State 
resources in any form whatsoever which distorts or  threatens to distort competition by favouring 
certain undertakings or the production of certain goods shall, in so far as it affects trade between 
Member States, be incompatible with the internal market".  In other words State aid to the aviation 
sector is in principle forbidden.  Consequently, State aid can be granted only under ve ry limited conditions in or der to ensure a level 
playing field for the market participants.  Current State aid framework: 
 Community guidelines on financing of airports and start-up aid to airlines departing from 
regional airports (2005 Aviation Guidelines, OJ C 312, 9.12.2005, p. 1) 
 Application of Articles 92 and 93 of the EC Treaty and Article 61 of the EEA Agreement to 
State aids in the aviation sector (1994 Aviation Guidelines, OJ C 350, 10.12.1994, p. 5) 
There are no compatibility provisions for State aid fo r special international routes, air cargo flights, 
energy-efficiency in aviation or emi ssion-cutting in the aviation sector.  
The Commission decisions in this area are publishe d in the Official Journal of the European Union 
and in the State Aid Register  on the DG Competition website once any confidentiality issues have 
been resolved.  New publications of state aid decisi ons on the internet and in the Official Journal are 
listed in the State Aid Weekly e-News.  Question 80 
Please provide information on the aircraft leasi ng sector, esp. the operations from local aircraft 
manufacturers, and information on the financial suppo rt for aircraft leasing and sales within the EU. 
 
Answer 
The EU rules on leasing can be found in Article 13 of Regulation (EC) No 1008/2008 of the European 
Parliament and of the Council on common rules fo r the operation of air services in the Community 
(please find the Regulation enclosed).  
As far as the financial support is concerned, save as  otherwise provided in the EU Treaties, any aid 
granted by an EU Member State or through Stat e resources in any form whatsoever which distorts or 
threatens to distort competition by favouring certai n undertakings or the production of certain goods 
is, in so far as it affects trade between EU Member States, incompatible with the internal market and, 
therefore, not allowed (Article 107 of the Treaty  on the Functioning of the European Union, TFEU). 
According to the TFEU, for example aid to make good the damage caused by natural disasters or 
exceptional occurrences is considered to be compatible with the internal market.  For example aid to 
promote the execution of an important project of  common European interest as well as aid to 
facilitate the development of certain economic activiti es or of certain economic areas, where such aid 
does not adversely affect trading conditions to an extent contrary to the common interest, may be 
considered to be compatible  with the internal market: 
State guarantees can be possible and could be an important tool to support the development of 
companies and to facilitate their a ccess to finance, especia lly for small and medium enterprises.  The 
Commission provides guidance to EU Member Stat es and stakeholders when assessing whether a 
guarantee contains an element of state aid or not. As provided for in the answer to question 79, the Current State aid framework includes: 
 Community guidelines on financing of airports and start-up aid to airlines departing from 
regional airports WT/TPR/M/248/Add.1 
Page 164  
 
  Application of Articles 92 and 93 of the EC Treaty and Article 61 of the EEA Agreement to 
State aids in the aviation sector  
 Question 81 
Please describe the contents and methods of econom ic supervision the EU imposes upon the airlines. 
 
Answer 
Regulation (EC) No 1008/2008 of the European Par liament and of the Council on common rules for 
the operation of air services in the Community (p lease find the Regulation enclosed) includes 
provisions relating to financial conditions for granting an operating licence.  The competent licensing authority assesses whether an undertaking applying for the first time for an 
operating licence can demonstrate that: 
(a) it can meet at any time its actual and potential obligations established under realistic 
assumptions, for a period of 24 months from the start of operations; and (b) it can meet its fixed and operational costs incu rred by operations according to its business 
plan and established under realistic assumptions, fo r a period of three months from the start of 
operations, without taking into account any income from its operations. 
 For the above mentioned assessment done by the co mpetent licensing authority, each applicant is 
obliged to submit a business plan for at least the fir st three years of operation. Point 1 of Annex I to 
the Regulation contains a list of data which a fi rst-time applicant shall provide to the competent 
licensing authority.  Upon request, the EU air ca rrier shall provide the financial information  detailed 
in point 3 of Annex 1 to the Regulation (audited accounts, projected balance  sheet, expenditure and 
income figures, cash-flow and liquidity plans) within  the first 24 months from the start of operations.  
 
An EU air carrier is obliged to provide to the competent licensing authority its audited accounts no 
later than six months following the last day of the respective financial year (there can be an 
exemption from this deadline in the national law).  
It is the task of the competen t licensing authority to review co mpliance with the above mentioned 
requirements.  It shall in any case review compli ance with these requirements two years after a new 
operating licence has been granted or when a potentia l problem has been suspected or at the request 
of the European Commission.  
The competent licensing authority may at any time assess the financial performance of an EU air 
carrier which it has licensed.  Based upon its assessm ent, the authority shall suspend or revoke the 
operating licence if it is no longer satisfied that this EU air carrier can meet its actual and potential 
obligations for a 12-month period.  Nevertheless, the competent licensing authority may in such a 
case grant a temporary licence under certain conditions. 
 
Whenever there are clear indications that financial problems exist or when insolvency or similar 
proceedings are opened against an EU air carrier licensed by it, the competent licensing authority 
shall without delay make an in-depth assessment of  the financial situation and on the basis of its 
findings review the status of the operating licence within a time period of three months.  The 
competent licensing authority shall keep the Commission informed of its decisions. 
Some simplified operating licence rules apply to carriers operating smaller aircraft. 
 Question 82 
Please explain the recognition criteria for foreign investment. 
 
Answer 
In its Decision 95/404/EC of 19 July 1995 on the Swissair/Sabena case the Commission took the view 
that the above mentioned (answer to question 78) majo rity ownership requirement is complied with if WT/TPR/M/248/Add.1 
Page 165 
 
 
  at least 50 % plus one share of the capital of the air carrier concerned is owned by EU Member 
States and/or nationals of EU Member States.  The sc ale of the third-country investment as well as the 
distribution of the shares within each group of sh areholders need to be ta ken into account when 
assessing compliance with the effective control requi rement, which also applies.  The concept of 
ownership of an undertaking is essentially based on th e notion of equity cap ital.  Holders of such 
capital normally have the right: 
(i) to participate in decisions affecting the management of the undertaking, and (ii) to share in the residual profits or, in the event of liquidation, in the residual assets of the 
undertaking after all other obligations have been met. The licensing authority should analyze in detail comp lex structures, in particular issues arising: 
where different classes of s hares with different values and characteristics exist, and 
where the existence of warrants or options will risk rendering ineffective the "equity 
capital" attributes of a class of share. 
In the Sabena/Swissair case the Commission held t hat the question, whether a particular type of 
capital qualifies as equity capital and must th erefore be taken into a ccount under the ownership 
concept, can be answered only on a case-by-case bas is in the light of all relevant circumstances, 
including any possible consequen ces for compliance with the effec tive control requirement.  If, 
however, capital does not confer upon its holders any of the two abovementioned rights to an appreciable extent, it must generally be disregarded in determining the ownership situation of an 
undertaking. 
 Question 83 
Do the EU and its member States have any special tax or fund for the development of civil aviation? 
If yes, please provide information on its legal ba sis, standards, exemption policy and scope of 
application. 
 
Answer 
There is no such tax or fund in place at the EU level.   It should be noted, though, that it is possible for 
the Member States in the sphere of their competence to put such a tax in place. 
 
Emission Trading System  Question 84 
Please provide information on how the EU and its member States, as advanced economies with 
leading low-carbon technologies, would assist developi ng countries in the promotion and application 
of low-carbon technologies.  
 
Answer 
EU action and assistance towards developing countries to fight against and adapt to climate change takes many forms.  
As the largest contributor of climate finance flo ws to developing countries, EU on-going activities 
target key areas of collaboration such as low ca rbon development and adaptation practices as well as 
climate proofing.  The Fast start funds of the European Commission contribute towards the  REDD+ 
and mitigation objectives (€25M in  2010, €25M anticipated for 2011 and 25M in 2012) to facilitate 
Developing Countries transition to low carbon economi es.  With regard to adaptation, the EU is 
prioritising adaptation assistance to the most vuln erable countries - least developed countries, small  
island developing states, by delivering on the EU "fast-start" finance commitments and through the 
Global Climate Change Alliance.  The Cancun G reen Fund will also be an important delivery 
mechanism. 
In addition to other support, the EU also considers that the carbon market is a useful tool in this 
regard. EU legislation provides for ETS participan ts to use credits from mechanisms established 
under the Kyoto Protocol towards fulfilling their obligations under the EU ETS, with quality and WT/TPR/M/248/Add.1 
Page 166  
 
 quantity limits
18. Between 2008 and 2020, such credits can be used up to 50% of the overall 
reductions below 2005 levels made under the EU ETS19.  The EU Emission Trading System (ETS) is 
therefore the main driver of the international car bon market, accounting for the majority of demand 
for Kyoto mechanisms credits such as those from  the Clean Development Mechanism (CDM), and 
contribute to supporting developing countries in thei r fight against climate change: by buying such 
credits, participants in the EU ETS contribute to providing technology transfer and assistance to 
developing countries and countries with economies in transition, as these credits help fund projects 
which demonstrate new low carbon technologies in developing countries.  The EU also considers that 
the international crediting mechanism should be s ubstantially reformed at the UNFCCC level, to 
ensure that they fund more ambitious action, that  wouldn't otherwise be  funded under autonomous 
action by developing countries.  This should, inte r alia, favour the transfer of more innovative or 
leading technologies.  To limit climate change to 2°C, the project based CDM offsets should be 
replaced over time by sectoral crediting mechanism s for advanced developing countries.  These types 
of mechanisms go beyond the pure offsetting of emissions and could form stepping stones towards 
globally linked economy-wide cap-and-trade systems.   The CDM would then be focused on Least 
Developed Countries.  In the future, from 2013, th ere will be a significant increase in the amount of 
auctioning for allocation of allowances under the EU ETS. EU member states should spend at least 
50% of this on climate action at home and internatio nally.  This can include measures to encourage 
the use of low carbon technologies in developing countries.  Question 85 
Please list which countries are involved in emissions trading of the EU and provide information on 
how the initial allocation prices are determined. 
 
Answer 
While not being a trade measure in the WTO meani ng, the EU is pleased to have an opportunity to 
further explain its Emission Trading System (ETS ). There are currently 30 countries covered by the 
EU ETS - all 27 Member States of the European Un ion, plus Lichtenstein, Norway and Iceland.  
While much allocation in phase 1 and 2 was free, the price of allowances or of carbon (one 
allowances gives the right to emit 1 tonne of CO2) is determined by the market. It is the price at which 
market operators agree to trade allowances.  
 
AUSTRALIA I 
 
Report byWTO Secretariat  (WT/TPR/S/248) 
 
II. TRADE POLICY REGIME 
(1) L EGAL AND INSTITUTIONAL FRAMEWORK  
Australia notes (paragraph 2, page 13) that foreign direct investment is now within the European 
Union's exclusive competence and that this will have  an impact on the preferential trade agreements 
the European Union negotiates.  1. Will this also affect the foreign investment  screening regimes maintained by European Union 
member states? 
 
                                                      
18 Credits from afforestation, reforesta tion and nuclear projects cannot be used. 
19 The exact amount per operator is to be determined in line with methodology outlined in Directive 
2OO9/29/EC - Article 11a(8). WT/TPR/M/248/Add.1 
Page 167 
 
 
  Answer 
For the exact content of para. 2, that differs of th e one indicated in the preamble of the question, 
please refer to the text.  
With regards to the future EU policy regarding in ward investments, the new EU exclusive competence 
on foreign direct investment, as conferred by the Li sbon Treaty, above all creates the opportunity to 
work towards improving the conditions for Europe an investors abroad as well as for foreign investors 
in the EU. It allows developing and implementing a comprehensive investment policy that will add an 
important dimension to the external co mpetitiveness strategy for the Union.  
As such, we believe that the core issue is not  the openness of the European market for foreign 
investors but rather the fact that some of our tr ading partners do not offer a similar level of openness,  
non-discrimination and protection to European in vestors.  As the Commission's Communication20 sets 
out, we will pursue as a priority the opening of third countries' markets for European investors and 
seeking the best level of protection for our investors abroad.  
The screening mechanisms already in place in so me Member States are applied only on grounds of 
"public policy or public security", which is a very narrow exception to the general principle of the 
prohibition of virtually all restrictions on the movements of capital, that is enshrined at the EU level. 
The new EU exclusive competence on foreign direct in vestment will not affect those mechanisms. 
 
(2) Objectives and consultations 
 Australia notes (paragraph 15, page 17) the Comm ission's research supporting the European Union's 
trade policy which emphasizes the benefits to European businesses and consumers from lowering 
barriers to cheaper inputs and imports.  In addition,  it notes that the trade-weighted tariff rates are 
relatively low.    2. Has the Commission considered eliminating those tariffs outside of preferential trade 
negotiations/on a MFN basis? 
 
Answer  
The Commission does not at this stage consider un ilaterally reducing its tariffs, but is open to 
negotiate tariffs in multilateral, and in some cases, bilateral negotiations.  
 Australia also notes in paragraph 15 (footnote 22) the reference to the Co mmission's staff working 
document SEC(2010)1269 which at page 49 states that investor protection provisions only make sense 
when agreed with countries that do not provide ade quate protections to foreign investors, whereas 
market access provisions are useful for all countries.   
3. In the light of this view, why is the Commission seeking to cover investor protection 
provisions as well as market access in its ne gotiations with Canada and Singapore? 
Answer 
The question does not refer to a paragraph of the WT /TPR, but to a text that is mentioned in a 
footnote as additional reference for a different subj ect (the new comitology rules).  We cannot 
therefore comment on the exact text, but we can poi nt out, also in connec tion with paragraphs 46 and 
47, that the principles and parameters for the gradual implementation of the future EU policy are set 
forth by the European Commission in its Communication "Towards a comprehensive EU 
international investment policy":  (available at http://trade.ec.europa.eu /doclib/docs/2011 
/may/tradoc_147884.pdf) and among those principles and parameters are the criteria  referring to the 
selection of the negotiating partners.  As already indicated in paragraph 47, these criteria include 
                                                      
20 "Towards a comprehensive EU international investment policy":  (available at 
http://trade.ec.europa.eu/doclib/docs/2011/may/tradoc_147884.pdf). WT/TPR/M/248/Add.1 
Page 168  
 
 trade and investment flows, economic  growth prospects, and the po litical, institutional and economic 
climate.  (4) P
REFERENTIAL TRADE AGREEMENTS AND ARRANGEMENTS  
(ii) Reciprocal preferences 
Australia notes (paragraph 39, page 25) that the EU 's FTA with Korea will be applied provisionally 
from July 2011.  1. Could the EU advise what percentage of tariff lines, and what percentage  of trade between the 
parties will be subject to full tariff eliminations?  
Answer 
The FTA eliminates customs duties for all industrial goods (tariff lines and trade).  
 
2. Could the EU also advise these same percen tages with respect to agricultural lines?  
Answer 
For the EU side, 97,8% of agricultural tariff lines and 99.8% of trade are subject to full 
liberalization.  For Korea 97.7% of tariff lin es and 99.8% are subject to full liberalisation.  
 
3. Could the EU advise what products have  been excluded from tariff elimination? 
 
Answer 
On the EU side, 39 tariff lines covering rice or products containing rice have been excluded from 
tariff liberalisation. On the Korean side some 40 tariff lines covering products such as rice, onions, 
barley, garlic and ginseng have been e ither excluded or bound at 2007 duty level. 
 III. TRADE POLICIES AND PRACTICES BY MEASURE 
(1) M
EASURES DIRECTLY AFFECTING IMPORTS  
(iv) Tariffs 
(e) MFN tariff 
Australia notes (paragraph 33, page 35) that the averag e applied MFN tariff rate for agriculture fell to 
15.2 per cent from 17.9 per cent in 2008, although this largely reflected price movements rather than reductions in actual tariff rates.  In comparis on, the average applied MFN tariff rate for non-
agricultural products remained unchanged at 4.1 per cent.  
4. Given the WTO Secretariat's recognition that an  open trade regime is vital to enhancing the 
EU's external competitiveness and economic growth, how  does the EU continue to justify maintaining 
such high tariff rates for agricultural products, whic h impact so negatively on the long term capacity 
of European agricultural producers to improve their competitiveness, productivity and innovation? 
 Answer 
The EU recalls its position as the main world impo rter of agricultural products.  Nonetheless, we 
would be prepared to adjust tariff levels in the cont ext of a global result in the DDA.  In the interval, 
the EU will continue to respect its WTO commitments. 
 In addition, Australia notes (paragraph 34, page 35) th e Secretariat's analysis that the highest average 
tariff rates are for agricultural products and that  all MFN tariff rates above 100 per cent are AVEs 
relating to agricultural goods.   WT/TPR/M/248/Add.1 
Page 169 
 
 
  5. How does the EU justify such high levels of protection for its agricultural producers? 
 
Answer 
Please see our reply to question 7.   
(ix) Sanitary and Phytosanitary Measures 
Australia notes (paragraph 102, page 56) the capacity of both the EU and member States to both adopt 
SPS measures.  6. Can the EU advise on progress in the harm onization of SPS regulations across EU member 
States and the basis for monitoring the consistenc y of their implementation by individual members? 
Answer  
As regards harmonization of SPS regulations across EU Member States, currently the areas non-
harmonized are very residual.  In some cases, esp ecially where these national provisions lead to 
problems in intra-community or international tr ade, efforts are made to introduce harmonized 
measures. 
As regards the monitoring of the consistency of thei r implementation by individual members, each EU 
Member State is responsible for the implementation of  Union law within its own legal system and the 
Commission of the European Union is responsible fo r ensuring that Union law is correctly applied 
according to the Treaties.   
The Commission inspection service, the Food Veteri nary Office (FVO) works to assure effective 
control systems and to evaluate compliance with EU standards in the areas of food and feed safety, 
animal health, animal welfare and plant health.  It does this mainly by carrying out inspections and 
audits in Member States.  Country profiles (a comp ilation of key information for each Member State) 
and general overview reports are also carried out and used by the Commission to support its 
monitoring and enforcement activities.  All reports  are publicly available in a Europe website 
(http://ec.europa.eu/food/fvo/ir_search_en.cfm).  Where a Member State fails to comply with SPS Union law, the Commission has powers to bring the 
infringement to an end and, where necessary, may re fer the case to the European Court of Justice. 
The Commission takes whatever action it deems appropr iate in response to either a complaint or 
indications of infringements which it detects itse lf.  Non-compliance means failure by a Member State 
to fulfil its obligations under Union law.  It may consist either of action or omission.  
http://ec.europa.eu/community_law/in fringements/infringements_en.htm. 
 
Australia notes (paragraph 107, page 57) that the EU  has not yet formally expressed its appropriate 
level of protection in any publicly available document. 
7. Could the EU state its appropriate level of protection?  
Answer 
The appropriate level of protection concerning SPS ma tters is defined in Article 168 (1) of the Treaty 
on the Functioning of the European Union, in wh ich it is stated "a high level of human health 
protection shall be ensured in the definition and implementation of all Union  policies and activities".  
8. As the EU has not yet stated its appropriate level of protection, could the EU explain how 
trading partners can ascertain whether measures ar e consistently applied by the EU against an 
unstated appropriate le vel of protection? WT/TPR/M/248/Add.1 
Page 170  
 
 Answer 
As explained above the EU has identified its appr opriate level of protection in Treaty on the 
Functioning of the European Union.  The high l evel of protection is thus a basic requirement 
applicable to all health relevant legislation.  Un ion legal and procedural rules ensure that it is 
applied consistently.   
Trading partners can ascertain that in the EU a high level of human health protection is consistently 
applied by referring to the justification in the p reambles to measures adopted .  Here reference is 
consistently made to the necessity to achieve that level.  (3) 
MEASURES AFFECTING PRODUCTION AND TRADE  
(iv) Government Procurement 
Australia notes (paragraph 187, page 77) that th e EU public procurement totalled € 2,088 billion 
(16.8% of its GDP) in 2007, of which € 367.2 b illion (3% of GDP, representing just 18% of total 
public procurement) was above-thr eshold procurement i.e., procurem ent covered by EU legislation 
rather than national legislation of EU member States. 
 
9. Could the EU advise what percentage of to tal "above-threshold" procurement was awarded to 
EU suppliers?  Is the EU able to provide this data by member state? 
Answer 
The EU statistical report 2007 provides data for the number of contracts awarded to companies from 
GPA Parties.  In 2007, some 12 billion EUR of contracts were provided to companies from GPA 
Parties outside the EU.  This data is not broken down by Member State. Australia notes (paragraph 200, page 81) that the EU is firmly committed to ensuring eventual GPA 
accession by its bilateral partners.   10. Could the EU confirm that this statement is correct, and if so, advise the steps it is taking to 
"ensure" the accession of its bilateral partners? 
Answer 
The statement is correct.  The EU has the aspi ration of seeing the GPA become a multilateral 
Agreement. In its bilateral agreements, the EU prom otes the negotiation of procurement provisions in 
accord with the GPA standards and disciplines.  Where appropriate, it also attempts to include 
commitments by its negotiation partners to consid er accession to the GPA.  In doing so, the EU 
contributes to the dissemination of the GPA standar ds among other WTO members not yet Parties to 
the GPA and to incentivising the expans ion of the Agreement's membership. 
In addition, the EU conducts w ith a number of its bilateral partners a wide range of activities 
including regulatory dialogues, exchange of best practices and market access discussions in the area 
of public procurement.  One of the key objectives of these activities is to promote the setting of 
international competitive bidding pro cedures and the accession to the GPA.  
 
(vi) Intellectual Property Rights 
General 
 
Australia notes (paragraph 228, page 88) that under the Treaty on the Functioning of the EU, 
measures shall be established "for the creation of European intellectual property rights to provide 
uniform protection of intellectual property righ ts throughout the Union and for the setting up of 
centralised Union-wide authorization, co ordination and supervision arrangements"  
 11. What is envisaged for the process for achieving this obligation?  What steps have been taken 
to date, and what timeframe is foreseen for further action?  WT/TPR/M/248/Add.1 
Page 171 
 
 
  Answer 
There is no obligation under Article 118 of the T reaty on the Functioning of  the European Union 
(TFEU) to create European intellectual property right s to provide uniform protection at the EU level. 
Article 118 TFEU only serves as a legal basis for the creation of the EU wide protection of 
intellectual property rights. 
Article 118, paragraph 2, of the Trea ty on the Functioning of the EU (TFEU) was first used as a legal 
basis for the Council Regulation on the translatio n arrangements for the European Union patent 
(COM (2010) 350 final of 30.06.2010).  This propos al was a necessary element for the creation of an 
EU-wide patent, but did not get the required unanimous support of the Member States of the EU.  
At a request of a group of Member States, in December 2010 the Commissi on proposed to move 
ahead with the procedure of enhanced cooperation in the area of the crea tion of unitary patent 
protection.  Under the Treaty of the EU (TEU ) and the TFEU, enhanced cooperation allows 9 or 
more Member States to move forward on in a particular area as a last resort if no agreement can be reached by the EU as a whole within a reasonable period.  On 10 March 2011, the Council approved the launch of the enhanced cooperation among 25 Member States.  On 13 April 2011, the Commission 
presented two proposals for the measures implemen ting the enhanced cooperation (COM (2011) 215 
final and COM (2011) 216 final of 13.04.2011).  The first regulation deals with the substantive requirements for unitary patent protection under the legal  basis of Article 118, paragraph 1, of the 
TFEU.  The second regulation sets out the applicab le translation arrangements under Article 118, 
paragraph 2, of the TFEU.  Currently these proposed regulations are in the legislative procedure 
before the Council and the European Parliament. 
In the field of trade marks and designs, the EU wi de protection has been already established through 
Community trade marks and Community designs.  As  regards trade marks, the Commission launched 
a comprehensive evaluation of the overall functioning the trade mark system in Europe in 2009.  On 
the basis of this evaluation and an impact asse ssment, the Commission will present proposals to 
revise both the Community Trade Mark Regulation and the Trade Mark Directive in February 2012. 
As far as copyright is concerned, in its Communi cation on A Single Market for Intellectual Property 
(COM (2011) 287 of 24.05.2011), the European Commission states that it will examine the feasibility 
of creating an optional "unitary" copyright title on the basis of Article 118 TFEU and its potential 
impact for the single market, right holders and cons umers.  No specific timeframe has been given.  
12. What have been the benefits thus far of a dopting the Lisbon Treaty with regard to Article 118 
of the Treaty on the Functioning of the EU? 
Answer 
Since the adoption of the Lisbon Treaty, there have not  been any proposals in the area of copyright 
under Article 118 of the Treaty on the Functioning of the EU so it is not possible to assess the 
implications. 
 (a) Copyright and related Rights 
 Australia notes (paragraph 232, page 89) that, following an impact assessment study, in July 2008, the 
Commission adopted a proposal to amend Directiv e 2006/116/EC, i.e., to extend the term of 
protection for performers and producers of sound recordings, from 50 years to 95 years. WT/TPR/M/248/Add.1 
Page 172  
 
 13. What is the likely timing for adopting the proposal to extend the copyright term for sound 
recordings from 50 years to 95 years?  
 
Answer 
The Commission's 2008 proposal to extend the term of protection for sound recordings from 50 to 95 
has been debated in the European Parliament and th e Council.  The European Parliament adopted an 
amended proposal to extend the term from 50 to 70 years while the Council is still deliberating the 
matter.  
(b) Industrial property  
Patents 
 
Australia notes (paragraphs 241 and 242, page 92 ) that in December 2009, the Competitiveness 
Council adopted Council Conclusions on an enhanced patent system in Europe.  Two key features 
were the creation of a single EU patent, and the establishment of a court with jurisdiction both for 
European patents and for future EU patents.   
14. Given the recent adoption of the enhanced cooperation framework for the EU patent, could 
the EU provide information on the expected timelin e for implementation of the unitary EU patent?   
The EPO website mentions that "the European Commissi on's goal is for the first unitary patents to be 
granted in 2013" (at http://www.epo.org/law-pr actice/legislative-initiatives/eu-patent.html). 
 
Answer 
On 27 June the Competitiveness C ouncil reached a political agreement on the two draft regulations 
implementing enhanced cooperation in the area of unitary patent protection.  The European Parliament plans to have its reports on the regulatio ns adopted by the end of 2011/beginning of 2012 
and thus the final adoption of the two regulations could take place in the first half of 2012.  After the 
adoption of the necessary implementing measures, w ithin the EPO framework, by the 25 Member 
States participating in the enhanced cooperation, the first European patents with unitary effect could 
be obtained without delay.  It is to note, however, that the Member States and the European Parliament consider the creation of the unitary pat ent protection and the unified patent litigation 
system as a political package.  Consequently, both pr ojects have to advance in parallel in order to be 
able to maintain the planned timeline.  
 We note (paragraph 243, page 92) that the EPO deve loped a unified database for clean-energy patents 
in June 2009 and plans to create similar databases  for clean technology in the areas of transport, 
buildings, and agriculture  
15. Can the EU provide information on the use, if any, that has already been made of the unified 
database, and by which industries?   
 
Answer 
The European Patent Organization (EPO) is an independent intergovernmental organization; 
although all EU Member States are members of th e EPO, the EU itself is not a member and the 
organization is not connected to the EU.  The EU is  not therefore able to answer questions relating to 
services provided by the EPO.  The EPO may however be  able to provide this information if contacted 
directly.  
16. Can the EU provide further information on the EPO's polici es and practices and procedures 
on green patents, and the uptake of any green patent initiatives? 
 
Answer 
Please see our response to question 18.  WT/TPR/M/248/Add.1 
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  Geographical Indications (GIs) 
 
17. Could the EU provide current figures for the total number of terms registered as protected 
designations of origin (PDOs) and protected geogr aphical indications (PGIs), how many terms are 
registered as PGIs and PDOs for wines, spirits , agricultural products, foodstuffs and handicrafts, 
respectively, and the number of PDOs and PGIs wh ich have been registered for products originating 
within and outside of the EU, respectively?  
Answer 
2916 names have been registered as PDOs or PG Is for wines and agricultural products and 
foodstuffs. These figures also include 8 names which ha ve been registered as PDOs or PGIs for wines 
and agricultural products and foodstuffs originat ing in non-EU countries.  The PDO and PGI 
designations are not used in respect of geographica l indications of spirit drinks [330 names protected 
according to Regulation 110/2008] and handicrafts. 
 18. Could the EU provide current figures for the number of GIs which are protected through each 
of its bilateral agreements, including, for each agreement, how many EU terms are protected by bilateral agreement partners and how  many bilateral agreement partner terms are protected by the EU? 
 
Answer 
This information is published in the Official J ournal and publicly available on the Commission's 
relevant websites, in particular the Treaties O ffice Database and, more sp ecifically for wines, 
http://ec.europa.eu/agriculture/markets/wine/third /index_en.htm.  These websites are continuously 
updated.   
19. Could the EU explain how it provides protec tion for GIs which are protected through its 
bilateral agreements, including deta ils of relevant laws and enforc ement procedures?  In addition, 
could the EU provide details of objection or can cellation procedures which are available for GIs 
which are protected through its bilateral agreements? 
 
Answer 
The protection of GIs and the relevant procedures and possible cancellation provisions are those laid 
down in the relevant agreements, referred to in answer to question 21.  
20. Are third country GIs which are protected thro ugh trade agreements afforded the same type 
and level of protection as the GIs on the Database of Origin and Registration (DOOR)?  If not, could the EU provide a comparison of the type and level of protection afforded to these differently acquired 
GIs?  Where does this protection sit compar atively in relation to PDOs and PGIs?  
Australia notes (paragraphs 251 – 256, page 94 – 95) that the EU is expandi ng its use of GIs amongst 
EU member States and with third countries.  Aust ralia remains concerned about the EU's creation of 
legal obligations for GIs through its bilateral ag reements which prevent countries freely trading 
products that are widely understood to be common or generic in third markets. 
 
Answer 
The question refers to the DOOR database, which de als with GIs in accordance with EU Regulation 
510/2006 on the protection of geographical indicati ons and designations of origin for agricultural 
products and foodstuffs.  To date, only the FTA with  Korea has entered into  force in relation to 
protection of GIs for agricultural products and foodstuffs.  
The EU notes Australia's observation.  We also note t hat generic status is determined in a territory 
according to the law and circumst ances applicable in that territory. 
21. Noting the extensive use of GIs by the EU but few applications by third countries, can the EU 
explain how the GI system would enhance opportun ities for all countries to trade internationally? WT/TPR/M/248/Add.1 
Page 174  
 
 Answer 
The comparison of the number of GIs registered dom estically and the number of GIs registered from 
non-EU countries is not relevant to assess trading opportunities internationally.  The GI is an 
intellectual property right which, like trade ma rks and patents, ensures inter alia that trade in 
products bearing certain names may only be carried out by legitimate holders/users of the authentic 
product.   
22. Could the EU provide figures for the number of  objections to applications for registration of 
PGIs and PDOs which have been  lodged under Article 7(2) of Co uncil Regulation No 510/2006 of 20 
March 2006 since the Regulation entered into force a nd how many and which PG Is and PDOs, if any, 
have been refused registration on the basis of objections under Article 7(2)? 
 
Answer 
The Commission does not have figures available on objections.  
Australia notes (paragraph 252, page 94) that  in December 2010, the Commission submitted a 
proposal for a Regulation on agr icultural product quality schem es.  Among other options, it 
suggested that the GI regime be reformed by  refining the eligibility criteria, shortening the 
application process, and inviting producer groups  to take on a bigger administrative role. 
23. Could the EU provide more de tailed information about the "bigger administrative role" in the 
GI regime envisaged for producer groups?  What doe s this mean, and how might such an arrangement 
be structured? 
 
Answer 
Article 42 (Role of groups) of the Commission pr oposal for a Regulation on agricultural product 
quality schemes provides clarification on the ro le of groups:  Art. 42 Role of groups 
Without prejudice to specific provisions on produ cer organizations and inter-branch organizations as 
laid down in Regulation (EC) No  1234/2007, a group is entitled to: 
(a) contribute to ensuring that the quality of  their products is guaranteed on the market by 
monitoring the use of the name in trade and, if n ecessary, informing compet ent authorities as referred 
to in Article 33, within the framework of Article 13(3);  (b) develop information and promotion activiti es aiming at communicating the value adding 
attributes of the product to consumers; 
(c) develop activities related to ensuring compli ance of a product with its specification;  
(d) take action to improve the performance of  the scheme, including developing economic 
expertise, carrying out economic analyzes, dissemi nating economic information on the scheme and 
providing advice to producers.   
Article13(3) of the same Proposal:  
Member States shall take the appropriate administr ative and judicial steps to prevent or stop the 
unlawful use of protected designations of origin and protected geographical indications as referred to in paragraph 1, in particular at th e request of a producer group as provided for in point (a) of Article 
42. 
 Australia also notes (paragraph 252, page 94) th at a study was commissioned by DG Trade on the 
protection of GIs for non-agricultural products. Th e study found that, although it is difficult to 
conclude on the effectiveness of legal instrument s on GI protection for non-agricultural products, 
many producers saw the existing EU legal framework for PDOs and PGIs as an interesting route.  
24. What is meant by "an interesting route"?  Could the EU provide more detail on responses 
received from producers?  Is the EU contemplating using the existing legal framework for PDOs and 
PGIs for the protection of non-agricultural products?    WT/TPR/M/248/Add.1 
Page 175 
 
 
  Answer 
As mentioned in the Report from the Secretariat, a study on the protection of GIs for non-agricultural 
products had been commissioned by the Directorate General for Trade.  The vi ews expressed in this 
study are those of the contractors and do not represent any official views of the European 
Commission.  The information gathered  by the contractor is available in the study as well as the 
details pertaining to specific cases examined by the contractor.  The study, which is publicly available 
on the website of the European Commission, deta ils and provides explanations on the elements 
examined by the contractor, such as the one  quoted by the Secretariat in its report.  
As regards the protection of GIs for non-agric ultural products, the European Commission announced 
in its Communication adopted on 24 May 2011 entitled 'A Single Market for Intellectual Property 
Rights Boosting creativity and innovation to provid e economic growth, high quality jobs and first  
class products and services in Europe' that it is about to launch a feasibility study on the issue of GIs 
protection for non-agricultural products in the inte rnal market.  The study will notably provide an 
analysis of existing legal frameworks in the Member  States, an in-depth assessment of stakeholders' 
problems and needs and the potential economic im pact of protection for non-agricultural GIs. 
Drawing on the results of this work, following  further reflection and comprehensive evidence 
gathering, the European Commission will decide on an appropriate way forward, including the 
possible creation of a new EU title for such protection. 
It is also noted that under the Community Tr ademark Regulation, GIs can be protected as a 
Community collective trade mark.  Marks that iden tify the geographic origin of a product may be 
registered, as long as they have not become generic in the trade concerned.  A collective trade mark 
may be applied for by associations of manufactu rers, producers, suppliers of services, or traders, and 
may be used only by members of such associations.  Community trade marks do not serve to identify 
the quality of a product. 
25. Can a Community collective  trade mark serve to indicate the quality of a product or products?   
 
Answer 
Community collective trade marks are owned by a collective body, for example a producers' or 
manufacturers' association or c ooperative, whose members use th ese marks to identify themselves 
with a level of requirements set by the collectiv e body.  Quality or other characteristics (e.g. 
reputation) of the products may constitute one of these requirements.  
 
We note that the WTO TRIPS Agreement requires that  a GI identify a good as originating in a region 
or locality of a territory, where a given quality, reputation or other characteristic of the good is 
essentially attributable to its geographical origin. 
26. If a Community collective trade mark does not indicate a given quality, does it indicate 
reputation or some other characteristic?  Can the EU provide some indicative examples of such 
characteristics?  
Answer 
Please see our response to question 28.  
 
(c) Enforcement  
We note that the EU has several Directives containing rules applicable to the online enforcement of IP 
rights, such as Directive 2004/48 (the Enforcement Directive).  
27. What is the relationship between Direc tive 2004/48 and France's HADOPI Law (paragraph 
237 and 238, page 91)?  Does France's introduction of  the HADOPI Law indicate that the Directive is WT/TPR/M/248/Add.1 
Page 176  
 
 inadequate to address online copyright infringement ?  Are there any updates of the Directive under 
consideration?   
Answer  
The Hadopi law is a national law adopted by the French Parliament. Member States are allowed 
under the EU treaties to legislate in  areas covered by EU law to the extent national legislation is not 
conflicting with EU rules.  
At EU level, the EC is currently examining opti ons for a revision of the IPR Enforcement directive 
(Directive 2004/48/EC).  Subject to the outcome of  the Impact Assessment, it is however not the 
Commission's intention to introduce new measures agains t end-users but rather to target the sources 
of IPR infringements committed through the Internet.  
 
The United Nations Report of the Special Rapporteur on the promotion and protection of the right to 
freedom of opinion and expression (A/HRC/17/27) is critical of measures suspending or terminating 
access to the internet such  as the "three strikes-law" in France and the Digital Economy Act 2010 in 
the United Kingdom on the basis that the internet is  a medium by which the fundamental right to 
freedom of expression and opinion can be exercised.    28. Does the EU have any views or comments a bout the report or this issue in general?  
 
Answer  
As explained in the answer to question 30, the Commission is currently preparing an Impact 
Assessment examining options for a revision of  the IPR Enforcement directive (Directive 
2004/48/EC), where a comprehensive approach to the en forcement of intellectual property rights and 
the challenges posed by the digita l environment is being addressed.  
Without prejudice to the outcome of the Impac t Assessment, it is however not the Commission's 
intention to promote at EU level new measures ag ainst end-users but rather to target the sources of 
IPR infringements committed through the Internet. 
 
29. Is the revised EU strategy for the protection and enforcement of IP rights in third countries (paragraph 267, page 99) available to the public?  Has it been developed in consultation with any 
other parties?  What elements of this strategy might be relevant to third countries?  Answer 
The revised EU strategy for the protection and enfo rcement of IP rights in third countries is still 
under preparation and should be adopted (as a Commission Communication) before the end of the year.  
It is being developed on the basis of many source s of input, including a pu blic hearing held on 
10 May  this year (on which a report will be publis hed), answers to the IPR question (18) of the 2010 
public consultation on our future trade po licy (http://trade.ec.europa.eu/doclib/docs 
/2010/september/tradoc_146556.pdf), i nput from Member States and va rious stakeholders such as 
industry and NGOs (through meetings or letters) , information from our "IP Dialogues" and our 
assessment of the situation in various thir d countries resulting from negotiation contacts. 
The vast majority of the different elements of the strategy will be relevant to third countries as its 
objective is specifically to improve IPR protection and enforcement in third countries (either through 
legislation in the form of international treati es and bilateral agreements or more informally through 
IP Dialogues and technical assistance projects). WT/TPR/M/248/Add.1 
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  30. What is the nature of the bilateral "structu red IP dialogues" (paragraph 271, page 99)?  Who 
is involved in the discussions (i.e. customs official s, law enforcement officers or policy makers)?  
What are the main issues discussed?  How productive are the discussions and how effective have any 
outcomes been?   Answer 
The IP Dialogues take place usually once a year either in Brussels or in the participating country.  
The actual discussions take place among officials  from the various ministries and departments 
involved which can include la w enforcement officials, custom s officials and policy makers. 
Consultations are held with various stakeholders prior to the dialogues.  The issues discussed are 
those that are of interest or importance to one of  the parties or both and can be issues that represent 
problems faced by industry in the country concerned .  Discussions can cover all intellectual property 
rights and all sectors from legal, economic and social  and law enforcement angles.  The EU's general 
assessment is that this type of Dialogue is cons tructive, informative and has produced regular success 
albeit to varying degrees.  You may obtain information on our IP Dialogues by consulting the 
following website:  http://ec.europa.eu/trade/crea ting-opportunities/trade-topi cs/intellectual-property 
/dialogues/  
31. Will the EU use the Anti-Counterfeiting Trade Agreement (ACTA) (paragraph 272, page 99) 
as a standard to inform or influence future trade negotiations?   Answer 
The ACTA provisions may be used as one of the bases for the IP enforcement provisions in future 
trade negotiations, but it will not be the only one.  Others will be the TRIPS Agreement, a number of 
WIPO treaties and the EU enforcement legislation.  
 32. To the EU's knowledge, are rights holders satisfi ed with penalties applied by European courts 
in matters of IP infringement?  To the EU's knowledge , are rights holders satisfied that the courts have 
an adequate understanding of the economic harm caused by piracy and counterfeiting? 
 
Answer 
Between 22 December 2010 and 31 March 2011, the European Commission has carried out a public 
consultation on its Report on the applicat ion of the IPR Enforcement Directive 2004/48/EC 
(COM(2010)779 final).  The replies from right holders received in the course of that public consultation suggest that they 
consider the damages awarded by EU courts as too low.  Right holders also stressed the practical 
difficulties of proving lost profits.  The results of the public consultation will be published shortly on 
the Commission's website at http://ec.europa.eu /internal_market/iprenforcement /directives_en.htm. 
 
33. How has the EU Database Directive (96/9/EC) been implemented by EU member States?  Is 
it providing effective protection for databases in the EU? 
 
Answer 
European Commission published a working paper on the evaluation of the Directive 96/9/EC on the 
legal protection of databases in December 2005:  h ttp://ec.europa.eu/internal_market /copyright/docs 
/databases/evaluation_report_en.pdf. The evaluation looked into how the Directive wa s implemented in the EU Member States and whether 
the Directive created a legal framework that would establish the ground rules for the protection of a 
wide variety of databases in  the information age.  
 The Directive has been implemented into the le gislation of all EU Member States and the EFTA 
countries.  On the basis of the information availabl e, the evaluation finds that the economic impact of WT/TPR/M/248/Add.1 
Page 178  
 
 the newly introduced "sui generis" right on databa se production is unproven.  However, the European 
publishing industry, consulte d in the online survey, argued that "sui generis" protection is crucial to 
the continued success of their activities.  In add ition, most respondents to the online survey believe 
that the "sui generis" right has brought about legal certainty, reduced the costs associated with the protection of databases, created more business opportunities and facilitated the marketing of 
databases.  
 Customs  
34. What is the basis and rationale for the pr ohibition on parallel import ed goods originating from 
countries outside the EU, when parallel goods can be freely traded among EU countries? 
 
Answer 
The issue of parallel imports of goods  is closely related to the concept of the exhaustion of intellectual 
property rights under Article 6 of the TRIPS Agreemen t which plays an important  role in determining 
the way that intellectual property rules affect th e movement of goods and services in international 
trade.  Article 6 of the TRIPS Agreement leaves up to Members whether thei r international trading 
system operates on a national, regional or internati onal basis.  The EU, as a customs union, has 
chosen a regional wide exhaustion of intellectual  property rights, which applies throughout the 
territory of the EU.  In consequence, the intellect ual property owner loses or exhausts his rights after 
their first use in relation to goods  which have been put on the market in the EU by the owner or with 
his consent. 
 Customs may act, ex efficio, if they have sufficient grounds for suspecting that goods infringe an IPR 
(paragraph 266, page 96).  The Customs authorities then notify the detention/ suspension to the 
importer and right-holder.  
 35. In cases where Customs authorities make ex o fficio seizures is the right holder generally 
responsible for taking court action and mee ting costs associated with the seizure?   
 
Answer 
Without prejudice to the national criminal law of the member States, according to Council Regulation 
1383/2003, the right holder is notified by customs of the potential infringement of their IPR in the 
framework of an ex officio intervention (Article 4). Right-holders then should apply for customs action 
under Article 5 of the Regulation.  This application for action shall be accompanied by a declaration 
from the right-holder who agrees to bear all cost s incurred under the mentioned regulation in keeping 
goods under customs control pursuant to Article 9 and where applicable Article 11 (Article 6).  This 
does not preclude him/her to seek red ress under the national judicial pr ocedure.  The right-holder is 
responsible to start court proceedings to determin e whether an IPR has been infringed under national 
law.  
 
36. Do Customs authorities have ex officio pow ers where prosecution of the infringement is 
undertaken by Customs including court action and responsibility for costs?  Answer 
Different rules apply according to national criminal law of the MS. 
Apart from this competence of customs authorities, in  the EU, the enforcement of all IPR (including 
trade marks, copyright and related rights, patents an d geographical indications) is considered, in the 
first place, to be the responsibility of the right holders.  This is the consequence of the need to strike a 
balance between the private interest of right hold ers in enforcing their rights (and the benefits they 
draw from this), and the public interest in prot ecting IPR, taking into account also the limited 
resources of the public sector. In order to harm onize their possibilities to take measures throughout WT/TPR/M/248/Add.1 
Page 179 
 
 
  the EU, Directive 2004/48/EC on the enforcement of intellectual property rights provides right 
holders with civil law tools to en force their rights before the courts. 
 
We note a decline in the number of IPR seizures ma de by Customs agencies in 2009 compared with 
the previous year (paragraph 261, page  96, and Table III, 13, page 97).   
 
37. Is the EU able to provide details of the possi ble reasons for this decline in both seizure cases 
and articles seized? 
 
Answer 
The global economic turndown in 2009 heavily affected  international trade. In fact, exports fell by 
16%, while imports fell much more sharply by 23 % (Source Eurostat- Statistics in focus 28/2010). 
Despite the financial crisis, the number of customs`  interventions remained at a relatively high level 
compared to former years.  
IV. DEVELOPMENTS IN SELECTED SECTORS 
(1) 
AGRICULTURE  
(i) Agriculture in the European Union 
Australia welcomes the reforms the EU has undertaken  in recent years in relation to the Common 
Agricultural Policy.  Nevertheless, Australia not es (paragraph 3, page 101) that support remains 
considerable in both absolute and relative terms, and total support to the agricultural sector is the 
equivalent of nearly one third of the total value of production.  
 38. How does the EU justify such substantial leve ls of support?  Does the EU plan to reduce the 
level of support provided under future CAP programs?  
 
Answer 
The EU is pleased that the CAP reform process undertaken over the last two decades in a WTO-
consistent fashion is duly acknowledged.  The be st measure of the progress made is the massive 
reduction of trade-distorting s upport as defined under the Uruguay Round Agreement on Agriculture. 
The reference in the WT O Secretariat's report to the OECD calculation, without the necessary 
methodological explanations, is unfortunate in the context of a WTO TPR exercise as this figure does 
not make any distinction in the type of support according to the level of trade distortion. 
As a result of the CAP reforms, trade-distorti ng AMS support was substantially reduced from an 
average level of EUR 48 billion in the 1995-2000 reference period to EUR 12.3 billion in the 2007/08 marketing year. In parallel Blue Box support decreased from a peak of EUR 27. 2 billion in 2004/05 to 
only EUR 5.2 billion in 2007/08.  Amber Box and Bl ue Box figures combined represent 8% of the 
EU's value of agricultural production in the year 2007/08 and this percentage can be expected to 
further decrease following decisions already taken.  The reduction of trade-disto rting elements within 
the CAP is illustrated in Chart IV.3 on page 114 of the WTO Secretariat's report for the EU TPR. 
The preparation of the CAP post-2013 is currently on-going;  for further details reference can be 
made to the Communication of the European Commission "the CAP towards 2020:  Meeting the food, natural resources and territorial challenges of  the future" published in November 2010. 
 
Australia notes the Secretariat's observation (paragraph 4,  page 101) that there is potential for the EU's 
agricultural policies to have a significant impact  on other countries, particularly those whose 
economies depend on agriculture.  With more than  60 per cent of Australia's agricultural production 
exported, Australian producers continue to  be affected by the EU's policies. 
 
39. As the world's largest trading bloc which relies heavily on free and open markets for its exports – agricultural and non-agricultural – how does the EU justify maintaining such high market 
access barriers for many key agricultural products, at the expense of producers in other countries?  WT/TPR/M/248/Add.1 
Page 180  
 
 Answer 
The EU is the world's largest importer, with  imports exceeding EUR 80 billion in 2010 (source: 
Eurostat), which benefits third c ountries' producers, including Australian ones.  Having said that, the 
EU's tariff structure is part of its WTO right s and obligations and tar iff reductions are under 
discussion in the multilateral context within th e market access pillar of the DDA negotiations. 
Broadly speaking, it appears from Table IV.5 (page 1 03) that EU countries with larger average farm 
sizes ("agricultural area per holding 2007") have greater  profitability ("average gross margin per farm 
2007").  Those countries with an average farm size above 20 hectares seem to have more profitable 
farms than those countries with average holdings below 20 hectares. 
 
40. Has the EU undertaken any analysis of average farm size and farm profitability?  
 
Answer 
The EU agriculture features a remarkable diversity of farm structures which face a variety of 
challenges. Farm profitability cannot therefore not be analyzed simply on the basis of the average 
farm size at Member State level.  Sectoral compar ison can be found in the income report or other 
reports available on the website of the Fa rm Accountancy Data Network (FADN):  
http://ec.europa.eu/agriculture/rica/publications_en.cfm. 
 
41. Could the EU confirm whethe r farm size is an important factor for farm profitability?  
 
Answer 
Please see our reply to question 43.   
42. Has the EU undertaken any analysis on the impact of CAP support on farm development, in 
terms of consolidation and expa nsion of farming enterprises?  
 
Answer 
Regular evaluations of CAP measures are undertaken . For instance, a study is currently carried out 
on the structural effects of direct support. 
43. Are there any land reform issues preventing the sale of agricultural land in EU member 
countries?  
 
Answer 
Information on how land legislation at Member St ate level can have an infl uence on agricultural land 
sale as well as rental can be drawn from recent studies (commissioned by the European Commission): 
 Study on the Functioning of Land Markets in the EU Member States under the Influence of 
Measures Applied under the Common Agricultural Policy:  http://ec.europa.eu/agriculture 
/analysis/external/landmarkets/index_en.htm. 
 Review of the Transitional Restrictions Main tained by New Member States on the Acquisition 
of Agricultural Real Estate:  http://ec.eur opa.eu/internal_market/cap ital/docs/study_en.pdf. 
 
44. Has the EU undertaken any analysis of the imp act of specialisation in agriculture in member 
states on agricultural profitability within those states?  Answer 
For detailed reports by sector, please see website of the Farm Accountancy Data Network (FADN): 
http://ec.europa.eu/agriculture/rica/publications_en.cfm.  WT/TPR/M/248/Add.1 
Page 181 
 
 
  (ii) Agricultural policies 
Australia notes (paragraph 9, page 104) that the OECD21 estimates the EU's average domestic 
agricultural prices remaining at 8 per cent above  international prices (OECD Nominal Protection 
Coefficient 1.08).  In addition, the prices receive d by EU producers for some individual commodities, 
referred to below, are much higher than world prices:  
 Sugar - 97 per cent higher in 2007 and 16 per cent higher in 2009. 
 Beef and veal - 67 per cent higher in 2007 and 38 per cent higher in 2009  
 Sheep meat - 35 per cent higher in 2007 and 29 per cent higher in 2009  
 Poultry - 63 per cent higher in 2007 and 62 per cent higher in 200922  
 45. Does the EU consider that continued reform of agricultural policies su ch as export subsidies, 
intervention purchases and tariffs will provide EU consumers with more competitively priced agricultural produce, and increase EU agricultural producers' connect edness to, and competitiveness 
in, international markets? 
 
Answer 
Reference is made to:  i) the Communication of  the European Commission "the CAP towards 2020:  
Meeting the food, natural resources and territorial challenges of the future" published in November 
2010; and ii) the Communication of the European Commission "A better functioning food supply 
chain in Europe" published in November 2009.  
46. To what extent is the greater consistency between EU domestic prices and world prices (in 
2009 compared to 2007) a function of  high world prices or EU reform?  
 Answer 
In general, 2007 and/or 2008 were years of high prices on both world and EU markets and for most commodities prices were generally lower in 2009.  The greater consistency referred to between 2007 
and 2009 can therefore not be simply attributed to higher world prices. 
 (a) Domestic support  
Despite adjustments in domestic supports, Australia  notes (paragraphs 12 to 24, page 105 – 108) that 
the EU's Producer Support Estimate is estimated to  be 24 per cent in 2009. Australia's PSE for the 
same year is estimated to be 3 per cent.   47. What elements under the 2014-2020 CAP refo rms are expected to reduce support to EU 
farmers? 
 
Answer 
The preparation of the CAP post-2013 is currently on- going – it is therefore too soon to speculate on 
its elements;  for further details and information reference can be made to the Communication of the 
European Commission "the CAP towards 2020:  Mee ting the food, natural resources and territorial 
challenges of the future" published in November 2010.  
 
Australia notes (paragraph 21, page 107) that prod uction quotas for sugar have been reduced since 
2005, which has resulted in cessation of sugar produc tion in five member States, and sugar production 
is now concentrated in seven member States.   
                                                      
21 "Agricultural Policies in OECD Countries 2010", pages 50 and 51. 
22 "Agricultural Policies in OECD Countries 2010", page 95. WT/TPR/M/248/Add.1 
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 48. Can the EU outline the current structure of th e EU sugar industry in th e seven member States 
still producing sugar?   
Answer 
Currently, 18 of the 27 EU Member States have sugar  quotas, with four Member States sharing 65% 
of the total quota.  
49. To what extent is the reduction in sugar production quota part of th e broader sugar reform 
agenda, and is the reduction permanent? 
 
Answer 
Following the 2006 sugar reform, quotas for suga r, isoglucose and inulin syrup were reduced by 
nearly 6 million tonnes and current quotas apply until 1 October 2015. 
 
50. Could the EU provide details of the Rural Development payments for the ‘modernisation of 
agricultural holdings'?  
 
Answer 
Support for modernisation of agricu ltural holdings is given to investments which improve the overall 
performance of the agricultural holding and respect the EU standards applicable to the investments 
concerned.  Please refer to the Rural Developmen t Regulation 1698/2005 (Ar ticle 26, Section 1, 
Chapter 1, Title IV) of September 2005 as amende d by Regulation 74/2009 of 19 January 2009.  
 
51. How are recipients selected? If this progra m involves the purchase of capital equipment, how 
does the EU ensure that farmers ar e able to maintain the capital investment, or that farmers are not 
over-capitalised with a purchase under this program?   Answer 
Recipients are selected by Member States on the basis of eligibility criteria and selection criteria 
established by the Member States.  Examples of elig ibility criteria are:  the existence of professional 
skills or/and a business plan.  Please refer to Ru ral Development Regula tion 1698/2005 (Section 1, 
Chapter 1, Title IV) of September 2005 as amende d by Regulation 74/2009 of 19 January 2009.   
 
The purchase of new machinery and other equipment is an eligible expenditure under this payment. 
Beneficiaries are obliged to maintain the investment  for five years.  If not, amounts unduly paid out 
shall be recovered by the Member State.  There is no specific legislation concerning over-capitalisation on EU level, however  Member States may take this into account in the selection 
procedure.  The operations realised  under this measure have to contribute to the objective of the rural 
development programme and are subject to monitoring.   52. Could the EU please provide details of the Rural Development payments for "setting up 
young farmers"?  Is this an apprenticeship scheme, as sistance with farm purchase or another form of 
training?  
 
Answer 
The support is granted as a lump sum payment provid ing additional cash flow at the moment when the 
own resources of the young farmers are under strain.  Support is given to farmers that are less than 
40 years old and are setting up an agricultural holding for the first time, as head of the holding.  The 
young farmer also has to possess adequate occupatio nal skills and competence and submit a business 
plan for the development of the farm activities.  The business plan shall describe at least the initial 
situation of the holding and specific milestones and targets for the development of the activities of the 
new holding.  Please refer to Ru ral Development Regulation 1698/200 5 (Article 22, Section 1, 
Chapter 1, Title IV) of September 2005 as ame nded by Regulation 74/2009 of 19 January 2009. WT/TPR/M/248/Add.1 
Page 183 
 
 
  (a) Market access 
Tariffs 
 
Australia notes (paragraphs 30 -32, page 109) th at agricultural products entering the EU face 
relatively high tariffs and tariffs are often ch anged in response to world prices fluctuations. 
 
53. Could the EU confirm that the reduction in the average applied AVE tariff on agricultural 
products from 18.6 per cent in 2006 to 15.2 per cent in  2011, is a result of world price fluctuations 
rather than tariff reform?  
 
Answer 
Although world price fluctuations are a likely explanation, the detailed methodology used by the authors of the calculations would need to be ch ecked, in particular how preferential agreements were 
taken into account when calculating applied tar iffs (e.g. end of transitional measures with Least 
Developed Countries, the interim Economic Partn ership Agreements signed with ACP countries). 
 
We note (paragraph 32, page 109) that changes in ta riff levels for agricultural products in response to 
world market prices can reduce pred ictability and exacerbate fluctuati ons in world market prices.  
 54. What does the EU consider is the impact of th ese tariff policies, particularly in times of high 
volatility?  
 
Answer 
The mentioned changes in the tariff levels were te mporary, concerned only a handful of tariff lines 
and were limited by the size of tariff rate quot as.  Moreover, ad-valorem equivalents of these 
reductions were rather modest (around 5% of va lue).  The impact of these measures on trade and 
price volatility can therefore be considered very limited.  
55. Could these policies contribute to price vol atility in agricultural markets by increasing 
uncertainty and impacting on commercial decisions?  
 
Answer 
Please see our reply to question 57. 
 
Tariff quotas 
 
Paragraph 34 (page 110) notes that the EU appears to maintain a complex list of separate tariff quotas 
comprising 114 separate tariff quotas covering a broad range of agricultural products. It also note that 
the EU stated changes to quotas were the result of  EU enlargements and subsequent GATT Article 
XXVIII negotiations, and that tariff quotas are market access openings.  However, some quotas are so small that it is hard to consider them to be  commercially meaningful, and while 39 tariff quotas 
(34 per cent of total tariff quotas) were complete ly utilized, no imports took place under 20 tariff 
quotas (17 per cent).  
 
56. Does the EU consider the high number of ta riff quotas not utilized an indication that these 
quotas are not commercially meaningful?   
Answer 
In its report, the WTO Secretariat argues that th e small volume of some TRQs may render them not 
"commercially meaningful".  The EU would note that in fact the three quotas referred to by the WTO 
Secretariat have been filled at 100% (see last notifica tion), which would seem to be in contradiction WT/TPR/M/248/Add.1 
Page 184  
 
 with the WTO Secretariat's argumen t.  Conversely, the fact that a given quota is not completely filled 
in a given period does not necessarily mean that it is not commercially meaningful. 
 
57. Does the large number of tariff quotas creat e an administrative burden for the EU and 
member States?  
 
Answer 
The level of administrative burden related to the management of TRQs is considered acceptable. 
58. Can the EU explain why it has made use of the price-based SSG so regularly for chicken, 
turkey, and sugar products? 
 
Answer 
Conditions were fulfilled to impl ement the SSG on these products. 
 
(c) Export subsidies 
Australia notes that the EU's export subsidy regime  has not changed substantially over the past few 
years (paragraphs 38 and 39, pages 110 and 111).  Australia would support the EC's abolition of 
export refunds for a number of agricultural products.   59. We would welcome advice from the EU on how  it proposes to reform these export refunds in 
order to bring them into compliance with the go als established under the Doha Agriculture modalities 
to eliminate export subsidies by 2013. 
 
Answer 
The EU remains committed to the conclusion of the DDA negotiations which should lead to the 
parallel elimination of all form s of export subsidies and discipl ines on all export measures with 
equivalent effect, as part of a comprehensive,  ambitious and balanced package under the Single 
Undertaking, including domestic support and mar ket access provisions as established in the 
December 2008 draft modalities, but also TRIPS issues, namely GI register and GI extension. 
 
Australia notes that while Chart IV.1 (page 111) illust rates a substantial decrea se in the overall level 
of export subsidies in the EU, it shows an increase in export subsidies for pig meat.  
60. Can the EU provide an explanation for this  increase and furthermore, can the EU provide 
information on the level of export subsidies for pig meat since 2007/08?  
Answer 
The EU use of export refunds has continued to  decline over the years and in 2007/08 reached 850 
million euro down from 1,460 billion the year before.   This decline is linked to the large price 
increase for most products during that period.  Ho wever, the pig meat sector has not experienced the 
same scenario due to the following factors:  dr op in feeding costs, drop in prices for carcasses, 
depreciation of the dollar.  Exports refunds fo r pig meat amounted to 126 million in 2007/08. 
In 2008/9, the EU use of export refunds has furth er declined to 450 million euro, including 40 million 
euro for pig meat. 
 
Australia notes (paragraph 39, page 110) that dairy export subsidies were implemented in 
January 2009 and removed in October of that y ear.  The Secretariat's report also notes that the 
application of export subsidies can exacerbate swings  in world prices and change the terms of trade to 
the detriment of other exporters.  
 
61. Does the EU accept that export subsidies, like other trade distortions, can increase commodity 
price volatility?   WT/TPR/M/248/Add.1 
Page 185 
 
 
  Answer 
A complete reply to this question from Australia  would require a thoroughly comprehensive analysis. 
Price volatility is a complex issue with many dimensions.  The EU export refunds are in full compliance with its  WTO obligations.  In addition, we note that less 
than 1% and 0.5% of exports of European agricu ltural products benefited from refunds in 2009 and 
2010 respectively.    
Table IV.6 (page 114) shows an 11 per cent increase in single commodity transfers as a percentage of 
gross farm receipts for poultry meat while all other commodity categories listed have shown significant declines.  
 
62. Can the EU explain this increase?  
 
Answer 
The decline in Single Commodity Transfers (SCT) fo r grains, oilseeds, sugar, dairy and beef between 
2003 and 2009 reflects the implementation of CAP reforms with the introduction of successive 
reductions of administered prices.  However, for poultry, there are no direct payments and no administered prices.  Second, the use of export refunds  is not directly accounted for in the PSE, but 
possibly indirectly, provided it has an impact on prices used for the calculation of market price 
support.  Third, changes in the poultry SCT mainly  reflect changes in the gap between the price for 
EU producers and the reference price (border price adjus ted to a farm gate equivalent).  This gap 
displays significant variations across years.  There is another PSE "methodological complexity only 
known to experts".  When price support for cereals was high, corresponding "excess feed costs" were 
discounted from the PSE of livestock producers.  Following the cut in cereal support prices since 
1992, excess feed costs were reduced thus moving up the PSE for livestock pr oducers (despite the cut 
in beef support prices).  Considering OECD figures for the SCT calculations for EU poultry between 
2003 and 2009, changes in estimates for excess fe ed costs (although the latter are lower than pre-
1992) also contribute to the variability of SCT.  A combination of these factors could in varying degrees have contributed to the SCT increase for poultry.  (2) 
TRADE IN SERVICES  
(i) Introduction 
The Services Directive (paragraph 50, page 116) ha s simplified the movement of EU member State  
lawyers internally.  However, this is not the case fo r a foreign lawyer, even if the foreign lawyer is 
registered as a foreign legal consu ltant in one of the EU member States.  Being registered as foreign 
legal consultant in any one of the EU member States does not guarantee a right to provide legal 
services across the EU, whereas local lawyer s are able to practise across the EU. 
 
63. Is the EU able to advise whether a foreign la wyer who is registered in one EU member State 
can practise as a foreign lawyer in other EU member States?   
Answer 
Yes, a lawyer registered in one Member State can pr actice in another Member State.  If the practice is 
on a temporary basis, there is no need to registe r in the host Member State (as per Directive 
77/249/EEC).  For establishment, under Directiv e 98/5/EC, the lawyer can register in the host 
Member State once he has attested to regis tration in the home Member State and practice 
indeterminately under the home Member State title. A fter three years of effective and regular practice 
in the law of the host Member State (including Un ion law), the lawyer can choose to apply for full 
integration into the profession and practice under the host Member State title.     
Australia also notes that the registration and est ablishment of a commercial presence are effectively 
prevented in EU member states as many states require foreign law firms to register and establish as a WT/TPR/M/248/Add.1 
Page 186  
 
 local  law firm.  Foreign lawyers must pass local exams and satisfy all requirements required to 
practise as a local lawyer.  64. Given that most foreign lawyers only seek to pr ovide foreign law services, rather than practise 
local law, could the EU explain why registration and establishment in these circumstances as a local 
law firm is necessary to enable a commercial presence to practise foreign law? 
 
Answer 
Under Directive 98/5/EC (see answer to question 66),  it is not necessary to register as a local law 
firm in order to practice as a lawyer (the Directive also covers salaried employment, etc.).  The two 
Lawyers' Directives (Directive 98/5/EC and Directiv e 77/249/EEC) only apply to EU citizens who are 
legally established as lawyers in a Member State. Access to the profession for third-country citizens is subject to the national law of each Member State.  (ii) Financial Services 
(b) Insurance 
Australia notes the comment in the Secretariat's report  in relation to the "Solvency II Directive" that 
"if a third-country solvency regime is not deemed  equivalent, then it is up to the individual EU 
member State to determin e the treatment of reinsu rers based in that third country, which could be 
required, for example, to comply with additional requirements, such as the posting of collateral in 
relation to the risks they reinsure in the Eur opean Union" (paragraph 61, page 120).  Australian 
insurance services suppliers have advised that wit hout the recognition of equivalence in standards 
between Australia and the EU, Australian insura nce providers will be disadvantaged once the 
Solvency II Directive enters into force.  The regul ation may require Australian insurance providers to 
hold more capital than their EU competitors if equivalence is not recognized. 
 
65. Could the EU advise on how it is addressing this  possible barrier to trade in the insurance 
sector? 
 
Answer 
As regards this reinsurance issue the Commission adopted in January 2011 a proposal to amend the 
Solvency II Directive providing inter alia for a transitional regime of up to 5 years, on the basis of a 
Commission decision, according to which a third-count ry included in that regime will be eligible to 
be awarded the same benefits from  equivalence as it would have had with an equivalence decision, 
provided it will meet the conditions set by the Commission in that decision. 
The first decisions on equivalence are scheduled for the summer of 2012 at the earliest. The first 
jurisdictions pencilled in for an equivalence d ecision are Switzerland and Bermuda, developments as 
regards other jurisdictions remain to be defined. 
The (full) equivalence decisions will ascertain that a 3rd country has a solvency regime and a 
supervisory system equivalent to the ones set-up by the Solvency II Directive (Directive 
2009/138/EEC of 25 November 2009, OJ L 335 of 17 December 2009).  The Solvency regime and the supervisory system must be modern, risk-based and prospective.  The detailed rules are still being 
developed through the Implementing Measures (to be adopted in 2012), Directive 2009/138/EC being 
a principles based Directive only. 
Pending an equivalence decision (full equivalen ce or transitional equivalence) the regulatory 
requirements that third-country reinsurers will hav e to fulfil will be left to Member States, which 
means that in principle nothing should change fo r Australian undertakings in the meantime. 
 WT/TPR/M/248/Add.1 
Page 187 
 
 
  (c) Response to the Global Financial Crisis 
Australia notes (paragraph 65, page 121) the EU's reaction to the IASB's amendments to IAS39 (the 
accounting standard for financial instruments).  66. Can the Commission please explain: 
 
 why it believes that the IASB's International Fi nancial Reporting Standards, which have been 
adopted by some members, including Australia, should not serve as the basis for accounting 
standards used around the world? 
 
Answer 
The European Commission believes that the IASB 's International Financial Reporting Standards 
should serve as the basis for accounting standards used around the world. 
 
(iii) Telecommunications and Postal Services 
(a) Telecommunications 
Australia notes (paragraph 97 (footnote 92), page 131)  that the EU has implemented Regulation (EC) 
No. 544/2009 which reduces the retail price ceilings for regulated roaming calls to 0.35 EUR per 
minute for calls initiated and 0.11 EUR per minute for calls received across EU member States. 
 
66. Are non-EU countries able to enter into an arrangement with the EU to access these capped 
rates?  Answer 
The EU Regulation n°544/2009 on roaming is a un ilateral domestic act and cannot as such be 
extended to third countries.  However, this is w ithout prejudice to international agreements that the 
EU could negotiate in the future. 
 
Report by the European Union (WT/TPR/G/248)  (2)
  KEY DEVELOPMENTS IN THE EU  
2.3 Development and Implementation of the EU Investment Policy 
Australia notes (paragraphs 30 and 40, page 10) that the EU is developing transitional arrangements to 
enhance legal certainty for existing investment ag reements, and that "unde r certain conditions" it 
intends to "negotiate new and/or  renegotiate old agreements". 
 67. We would appreciate more specific inform ation about the proposed conditions and the 
proposed negotiation or re negotiation process.   
 
Answer 
The future Regulation establishing transitional a rrangements for bilateral investment agreements 
between Member States and third countries (mentione d in par. 45) will establish the conditions and 
the procedure under which Member States would be empowered to negotiate new bilateral investment 
agreements or re-negotiate existing ones.  Sin ce the proposed Regulation is still under discussion 
between relevant EU institutions, no further inform ation, also concerning timing of completion of the 
procedure, is available at this stage.   
 
68. When does the EU expect on-going discussions between the Council and the Parliament to be 
completed? WT/TPR/M/248/Add.1 
Page 188  
 
 Answer 
Please see our reply to question 71.  
 (3) K
EY DEVELOPMENTS IN THE EU TRADE POLICY (2009  – 2010) 
3.1 Introduction 
Australia notes (paragraph 59, page 14) that the Commission will present in 2011 a legislative 
proposal for an EU instrument to increase the leverage to secure improved symmetry in access to 
public procurement markets in developed a nd large emerging economies, building on the 
implementation of international commitments. In doc uments recently circul ated by the European 
Commission seeking stakeholder contributions to its  on-going review of EU procurement policy, 
Australia notes that a number of policy options have  been suggested.  One of these options (option A) 
would require the EU procuring entities to "excl ude third country goods, services and companies not 
covered by international commitments of the EU."  69. Could the EU explain why it is consideri ng discriminating against the goods, services and 
suppliers of all WTO members who are not members of  the GPA or do not have bilateral agreements 
with the EU, including those which allow EU supplie rs to participate in their procurement markets, 
simply on the basis of there bei ng no formal agreement in place?  
 
Answer 
The EU is currently considering proposing a new legi slative instrument rela ting to the access to the 
European Union's procurement market by suppli ers, goods and services from outside the EU.  
Before adopting any legislative proposal, the EU  must conduct an exhaustive economic and political 
impact assessment of the envisaged future policy initi ative.  In doing so, the EU must envisage and 
assess a number of different policy options, which c an range from refraining from any legislative 
initiative to adopting measures that would address  situations when third countries maintain 
discriminatory measures against EU bidders and exclude EU goods, services and companies not 
covered by their international commitments. The underl ying idea behind the legislative instrument is 
not to discriminate, but to clarify the conditions of access to the EU procurement market.  To this end, 
the real conditions of access of EU companies to third countries (with or without international 
agreement) will be analyzed.  
The content of the future legislative proposal is yet not defined and will largely depend on the 
outcome of the impact assessment.  The analysis of  the replies to the referred consultation will 
contribute to that analysis.  
 
70. Does the EU believe that such an approach w ould be consistent with its stated commitment to 
an open, non-discriminatory procurement system?  
 
Answer 
Yes.  The EU strongly abides its commitments to open and non-discriminatory procurement system. 
Indeed, through international commitments (i .e. the WTO Government Procurement Agreement 
(GPA) and bilateral/regional FTAs), the EU advocates  an ambitious opening of international public 
procurement markets and has thus committed it self to granting market access to its public 
procurement market for certain foreign goods, servi ces and companies.  In addition, companies and 
goods from countries outside the EU generally enjo y a de facto larger degree of access to the EU's 
public procurement market, even if their countries of origin have not conc luded an international 
agreement with the EU on the mutual opening of pu blic procurement markets.  EU companies trying 
to compete for bids in third countries do not always benefit from such an open approach to 
international trade. 
This new piece of legislation is not meant to crea te barriers for suppliers from outside the EU. The 
EU will continue to fulfil all its in ternational procurement obligations.  This initiative is designed to WT/TPR/M/248/Add.1 
Page 189 
 
 
  help secure and increase symmetry in access to public  procurement markets.  Its key aims are to 
strengthen the EU negotiation position when negotia ting access to public procurement markets and to 
clarify the agreed terms of access to the EU's pr ocurement market both fo r procurements committed 
and not committed internationally.  
 71.  Does the EU believe that there is any poten tial for such discriminatory treatment to prompt 
other WTO members to implement similar policies?  
Answer 
No.  The main objective is to create more  incentives for reciprocal market opening.  
As such, the initiative is not targeting any specific  WTO member. This new legislation would aim at 
re-balancing specifically those situations where there is a clear gap between the actual access 
conditions of third countries, goods and services to th e EU's procurement market (either on the basis 
of mutually agreed commitments or given the de  facto openness of the EU's market) and the lack of 
substantially reciprocal access of EU bidders to th at particular third country's procurement market. 
Potential restrictions would only be considered wh en   opening cannot be envisaged with specific 
trading partners through negotiation.  
 
III. TRADE POLICIES AND PRACTICES BY MEASURE (1) 
MEASURES DIRECTLY AFFECTING IMPORTS  
(i) Customs Procedures 
Australia notes (paragraph 12, page 28) that the EU issues advance rulings in relation to tariff 
classification and origin matters.   
 72. Could the EU indicate if it has or will give c onsideration to issuing rulings in relation to the 
methodology used for the calculation of customs value of a good?  Answer  
The EU is not considering to issue rulings related  to the methodology used  for the calculation of 
customs value of a good. 
 
(iii) Rules of Origin 
Australia notes (paragraph 19, page 32) that the EU would introduce compulsory origin marking for 
certain industrial products imported from non-EU  countries with the exception of Iceland, 
Liechtenstein, Norway, Switzerland and Turkey.  
 73. Can the EU outline the legal basis within th e WTO Rules for its granting of exemptions for 
some non-EU Members and not others?   Answer  
According to the WTO rules (in particular Article  XXIV:5 GATT 1994), there may be derogations to 
GATT rules for the purpose of customs unions or free trade areas. 
 
Paragraphs 24 and 25 (page 33) describe relevant "cumulation provisions" within the EU's revised 
preferential rules of origin arrangements.   
 74. Can the EU explain whether GSP exporters ca n utilise "cumulation" provisions so as to count 
non-originating content up to the full amount of th e relevant regional value content requirement (eg 
30 per cent value threshold for LDCs and 50 pe r cent value content for GSP recipients)?  
 WT/TPR/M/248/Add.1 
Page 190  
 
 Answer  
In case a type of cumulation provided for in the EU's GSP rules of origin applies, product specific 
rules listed in Annex 13a to Commission Regulation (EEC) No 2454/93 (as amended by Commission Regulation (EU) No 1063/2010) do not apply.  The working or processing carried out (together with 
the value criterion, in the case of regional cumulation) must si mply be more than insufficient. 
 
75. Can the EU also explain the term ‘extended' cumulation?  
Answer  
Extended cumulation is a system, conditional upon  the granting by the European Commission, on a 
request lodged by a beneficiary country and whereby cert ain materials, originating in a country with 
which the European Union has a free-trade agreeme nt in accordance with Article XXIV of the 
General Agreement on Tariffs and Trade (GATT) in fo rce, are considered to be materials originating 
in the beneficiary country concerned when furt her processed or incorporated in a product 
manufactured in that country.  Extended cumula tion may be granted by the Commission, provided 
that the countries involved in the cumulation have und ertaken, inter alia, to  provide the necessary 
administrative co-operation both with regard to the European Union and also between themselves 
and that the undertaking has been notified to th e Commission by the beneficiary country concerned.  
Materials falling within Chapters 1 to 24 of the Harmonized System are excluded from extended 
cumulation.  
More information is available in the guide for users on GSP rules of origin available 
at:http://ec.europa.eu/taxation_customs/customs/c ustoms_duties/rules_origin/preferential/article_839
_en.htm. 
 
(iv) Tariffs  
Paragraph 31 (page 35) describes the EUs complex tariff arrangements in some sectors and the lack of 
transparency this generates for its trading partners.    76. What are the EUs plans for tariff simplifica tion given the significant proportion of tariff lines 
attributable to non-ad valorem forms of tariffs?  Answer  
The nature of an import duty should not be confused with the level of protection it provides. Australia 
will note that the calculation of an average duty depends on the methodology used to calculate ad 
valorem equivalents (AVEs) of non-ad valorem duties.  Any calculation of AVEs has shortcomings as 
the result can be influenced by several elements, including:  the base period and partners chosen;  
commodity prices;  exchange rates;  shocks in spec ific markets;  treatment of mixed tariffs and tariff 
lines for which trade data are not available;  and th e extent to which preferential trade is included in 
the unit value calculation. Paragraph 32 (page 35) describes the calculation of a verage EU applied tariffs.  We note that, in the 
case of some compound tariffs only the ad valorem co mponent was used for the analysis.  This would 
suggest that the average tariff figures underestimate the real degree of protection in the EU tariff 
structure.    
77. To what extent would the inclusion of non-ad valorem components  change the average 
results?  Answer  
Please see our reply to question 5.  WT/TPR/M/248/Add.1 
Page 191 
 
 
  Paragraph 34 (page 35) further highlights the signifi cant tariff peaks that remain in the EU's tariff 
profile.    78. Given sectors such as motor vehicles (22 per cent) and fish (20-22 per cent), and the EU's 
stated interest in South-South trade (TPR/PR/G/28,  paragraph 65), will the EU consider significant 
unilateral tariff reform in such sectors? 
 
Answer  
In total only 10 tariff lines in chapter 87 (heavy trucks) and 35 lines in chapter 3 (certain fish items) 
are applied between 20-22%.  In the case of fish, the se lines are mostly either out of quota rates or 
applied on a seasonal basis. 95% of fish arrives in th e EU duty-free because of bilateral agreements 
or unilateral preferences (LDC's).  Taken together, these lines represent less than 0.5% of EU tariffs. 
The EU does not apply any customs tariffs to LDC's.   The EU has no intention of reducing its tariffs 
unilaterally to other trading partners, but is prepa red to negotiate its tariffs in multilateral and in 
some cases bilateral negotiations."  
 
Australia notes (paragraph 41, page 37) the EU's approach to suspen sion of tariffs and the process by 
which Member states submit proposals to the Commission.    79. Australia would appreciate further informa tion on whether there are clear published criteria 
underpinning this scheme and consideration of tariff suspension. 
 
Answer  
The guiding principles for the implementation of  autonomous tariff suspensions and quotas are 
contained in the document mentioned in footnot e 45 of the Report, i.e.  European Commission 
document 98/C 128/02 (OJ C 128/2, 25 April 1998).  This can be retrieved electronically in the 
following link:  
http://eur-lex.europa.eu /LexUriServ /L exUriServ.do?uri=OJ:C:1998: 128:0002:0010:en:pdf. 
 (viii) Technical Regulations and Standards 
Australia notes that this section of the report contains little or no discussion of some of the most 
significant developments in EU regulation in the past decade – i.e. new regulatory approaches to 
registration, evaluation and authorization of ch emicals (REACH) and clas sification, labelling and 
packaging of substances and mixtures (ATPs and CLP).    80. Given the extensive concerns raised by trad ing partners, and discussion of these issues within 
the TBT Committee, we would welcome an update in this  report of internal EU efforts to ensure that 
the provisions do not impact unfairly on non-EU prod ucers and on small to medium-sized enterprises. 
 
Answer  
The EU has provided lengthy replies on all issues relating to the Regulation on Registration, Evaluation, Authorization and Restrictions of Chemicals (REACH) and the Regulation on 
Classification, Labelling and Packaging of Subs tances and Mixtures (ATPs and CLP), in writing and 
orally, over the years in a number of TBT Committee meetings.  
Concerning the Regulation on Classification, L abelling and Packaging of Substances and Mixtures 
(ATPs and CLP) a 20 page long reply was circu lated in December 2008 to those WTO members 
having sent written comments to the EU TBT No tification and Enquiry Point. The answer addressed 
all comments that were submitted and is available on the EU TBT database 
(http://ec.europa.eu/enterprise/tbt/tbt_repository/EEC212_EN_12.pdf).  
In the November 2008 TBT Committee meeting three EU  experts provided for half a day extensive 
and detailed replies to WTO delegates questions on the ATP and CLP and on the REACH legislation.  WT/TPR/M/248/Add.1 
Page 192  
 
 In every subsequent TBT Committee meeting the EU has continued and will continue to provide 
answers to questions on recent developments with  regard to the implementation of the REACH 
legislation, including the efforts made to assist third country producers and SMEs. 
 Australia notes (paragraph 91, page 53) that regul ation no 765/2008 does not contain provisions 
relating to the recognition of non-EU accreditation bodi es, or the acceptance of certification and test 
reports issued by such bodies.    AUSTRALIA II 
 
Australia notes (paragraph 91, page 53) that regulation no 765/2008 does not contain provisions 
relating to the recognition of non-EU accreditation bodies, or the acceptance of certification and test 
reports issued by such bodies.    81. Given the absence of such provisions, can the EU clarify that this leaves the responsibility of 
recognition of non-EU accreditation bodies to the competency individual member states?   
 82. Can the EU indicate steps it is taking to clarify for member states appropriate actions in relation non-EU accreditation bodies, in  particular, with a view to limiting the risk that they will seek 
to apply the principles of decision 765 to external bodies? 
 
Australia notes (paragraph 91, page 53) that regulation no 765/2008 does not contain provisions 
relating to the recognition of non-EU accreditation bodies, or the acceptance of certification and test 
reports issued by such bodies.    
10. Given the absence of such provisions, can  the EU clarify that  this leaves the 
responsibility of recognition of non-EU accredit ation bodies to the competency individual 
member states?   
 
11. Can the EU indicate steps it is taking to clarify for memb er states appropriate actions 
in relation non-EU accreditation bodies, in partic ular, with a view to limiting the risk that 
they will seek to apply the principl es of decision 765 to external bodies? 
 
Answer to questions 10 and 11  
Pursuant to Article 2(11) of Regulation No. 765/2008, "accreditation body" is a body in an EU 
Member State that performs accreditation with author ity derived from the State. As a result, only the 
single national accreditation bodies appointed by ea ch Member State and fulfilling the requirements 
of Regulation No. 765/2008 are considered to be  accreditation bodies within the meaning of the 
Regulation. There is therefore no issue of nationa l competence of individual Member States in 
relation to the recognition of non-EU accreditation bodies.  The EU's common accreditation framework is a tool  to support the EU's internal regulatory policy 
and is based on the existing international accreditati on framework. It is not intended to change or 
undermine international cooperation arrangements operated under ILAC (International Laboratory 
Accreditation Cooperation) and IAF (International A ccreditation Forum) and to affect or force 
changes in accreditation practices in other WTO Members.   For further details, reference is made to the presentation given by an EU expert at the TBT 
Committee meeting of 24-25 March 2010 (JOB/TBT/2 of 16.4.2010) and the discussions on the EU's 
common accreditation framework that have taken pl ace in the TBT Committee since June 2009, as 
documented in the meeting minutes prepared by the WTO Secretariat.  WT/TPR/M/248/Add.1 
Page 193 
 
 
  DOMINICAN REPUBLIC I 
 
En el Informe de la Unión Europea, en su pági na 20, párrafo 82, se indica que"en la actualidad, la 
mayor parte de la ayuda se otorga a los agricultores en forma de ayuda a los de ingresos desconectados, lo que significa que no existe obligaci ón ninguna de producir y,  por consiguiente, los 
agricultores pueden comportarse libremente con arre glos a los incentivos del mercado; en algunos 
sectores en cambio, se establece una red de seguridad limitada. Probablemente se ha reforzado la función de la política de desarrollo rural." 
 
Question 1 
¿En qué consiste la red de segur idad limitada y cuáles son los criterios que se utilizan para su 
elaboración y alcance?; ¿Cómo se ha realizado la función de la política de desarrollo rural?  
Answer 
Public intervention concerns the following products: common wheat, durum wheat, barley, maize and 
sorghum, paddy rice, 600.000t of white or raw sugar  produced under quota, fresh and chilled meat of 
beef and veal, 30.000t of butter and 109.000t of skimmed milk powder.  The quantities of durum wheat, barley, maize, sorghum and paddy rice th at can be bought is as of the marketing year 
2009/2010 set at zero tonnes.  Intervention for sugar is phased out after 2009/2010.   
Public intervention takes place at prices well be low current internal and world market prices: 
€101.31/t for cereals, €150,-/t for rice, 80% of €404.4 /t for sugar, a €1560,-/t trigger for beef, 90% of 
€2463,9/t for butter and €1698/t for skimmed milk powd er.  The effective buying in price may be 
established using a tender procedure.  
The Rural Development policy has been object of a detailed notification and review under Article 
18.3 of the Agreement on Agriculture.  For the detailed content of the different policy instruments the 
EU invites the Dominican Republic to consult notification to the WTO Committee on Agriculture 
G/AG/N/EEC/65 (pages 4-10). 
 
El Informe de la Secretaría de la OMC indica, en su página ix, párrafo 12, que:"El ´chequeo´ de la 
Política Agrícola Común (PAC), acordado por los mini stros de agricultura de la UE en noviembre de 
2008, redujo aún más la importancia  de la PAC en el mercado y amplió los sistemas de ayuda 
desconectados de los precios o la producción agríco las. Sin embargo, la ayuda total sigue siendo 
considerable, tanto en términos absolutos como relativos, y el sostenimiento de los precios del 
mercado sigue representando una porción cuantiosa, aunque menguante, de las transferencias a los 
productores." 
 
Question 2 
¿Podría la UE, detallar o especificar los sistemas que posee de ayuda que se otorgan a los agricultores 
en la forma de ayuda a los ingresos desconectados ?; ¿Qué tipo de iniciativ a se ha programado para 
seguir reduciendo el volumen de la ayuda distor sionante del comercio que, como menciona la 
Secretaría de la OMC, "sigue siendo considerable"? 
 
Answer 
The EU is pleased that the CAP reform process undertaken over the last two decades in a WTO-
consistent fashion is duly acknowledged.  The be st measure of the progress made is the massive 
reduction of trade-distorting s upport as defined under the Uruguay Round Agreement on Agriculture. 
As a result of the CAP reforms, trade-distorti ng AMS support was substantially reduced from an 
average level of EUR 48 billion in the 1995-2000 reference period to EUR 12.3 billion in the 2007/08 marketing year.  In parallel Blue Box support d ecreased from a peak of EUR 27.2 billion in 2004/05 
to only EUR 5.2 billion in 2007/08. Amber Box and  Blue Box figures combined represent 8% of the 
EU's value of agricultural production in the year 2007/08 and this percentage can be expected to WT/TPR/M/248/Add.1 
Page 194  
 
 further decrease following decisions already taken.  The reduction of trade-disto rting elements within 
the CAP is illustrated in Chart IV.3 on page 114 of the WTO Secretariat's report for the EU TPR. 
 The major part of decoupled support is paid to  producers under two major payment schemes: the 
Single Payment Scheme (SPS) or the Single Area Pa yment Scheme (SAPS).  Both schemes have been 
notified in detail to the Committee on Agriculture.  Th e EU invites the Dominican Republic to consult 
WTO notification G/AG/N/EEC/68 for a detaile d description of the measures concerned. 
 The preparation of the CAP post-2013 is currently on-going;  for further details reference can be 
made to the Communication of the European Commission "the CAP towards 2020:  Meeting the food, 
natural resources and territorial challenges of  the future" published in November 2010. 
 
Question 3 
En la sección correspondiente a Agricultura en Evoluc ión en Determinados Sectores, se informa, en 
su página 125, párrafo 36, que:  "Las tasas de  utilización de utilización varían considerablemente 
entre los contingentes arancelarios.  En la ú ltima notificación correspondiente a la campaña de 
comercialización 2008/2009 y el año 2009, 39 contin gentes arancelarios fueron plenamente utilizados, 
mientras que otros 20 no se utilizaron para ninguna importación."  ¿Podría la Unión Europea detallar cuáles son los 20 contingentes arancelarios que no se utilizaron 
para ninguna importación, e indicar dónde se puede obtener esta información, y si es publicada con 
qué frecuencia? 
 
Answer 
The notification information quoted in paragraph 36 of the WTO Secretariat's report for the EU TPR 
is based on the EU notification concerning imports under tariff quotas (table MA:2) covering 
marketing year 2008/2009 and the calendar year 2009- WTO document G/AG/N/EEC/67 of 18 
January 2011. 
 
DOMINCAN REPUBLIC II 
 Question 4 
¿Existe en la Unión Europea el mecanismo por el cual empresas de terceros países puedan obtener un 
número de registro e identificación de operador ec onómico (número EORI) sin estar establecidas en 
un Estado miembro de la comunidad?  
Answer 
According to Article 4l paragraph 3 of the Customs Code Implementing Regulation (Commission 
Regulation (EEC) No. 2454/93, 2 July 1993) an economic operator not established in the customs territory of the Community shall be registered by th e customs authority or the designated authority of 
the Member State where he first performs one of the following: (a) he lodges in the Community a summary or  customs declaration other than any of the 
following: 
(i) a customs declaration made in accordance with Articles 225 to 238; (ii) a customs declaration made for temporary importation or for discharging 
this procedure by re-exportation; (iii) a customs declaration made un der the common transit procedure by an 
economic operator established in a contrac ting party to the Convention on a common 
transit procedure other than the European Union, where that declaration is not also used as an entry or exit summary declaration; (iv) a customs declaration made under the Community transit procedure by an economic operator established in Andorra or in San Marino, where that declaration is not also used as an entry or exit summary declaration; WT/TPR/M/248/Add.1 
Page 195 
 
 
  (b) he lodges in the Community an ex it or entry summary declaration; 
(c) he operates a temporary storage facility pursuant to Article 185(1); 
(d) he applies for an authorization pursuant to Article 324a or 372; 
(e) he applies for an authorized economic op erator certificate pursuant to Article 14a. 
 
Question 5 
¿Existe en la Unión Europea el mecanismo para  reconocer  las certificaciones de Operador 
Económico Autorizado expedido en terceros países?  
Answer 
The EU negotiates and concludes mutual recognition of  AEO programmes with third countries.  This 
leads to a situation in which third country AEOs are recognized in the EU and EU AEOs are 
recognized in the third country.  For mutual rec ognition of AEO programmes to work, it is necessary 
that the other country has an operational AEO programme.  The AEO programmes should be compatible and leading to equivalent results.  This  means that the respective AEO legislations should 
be compatible, as well as the practical implemen tation thereof. In addition, matters such as benefits 
awarded to AEOs under mutual recognition, the pr otection of personal data and IT solutions to 
exchange AEO information need to be resolved.  The EU has opted to implement the EU AEO 
programme in line with the WCO SAFE Framework of  Standards to secure and facilitate global trade 
which should facilitate international mutual recognition of AEO programmes  
 
Question 6 
¿Está vigente la normativa de marcado de origen y donde se puede conseguir información relacionada 
con su aplicación?  
 
Answer 
The proposed scheme on the indication of th e country of origin is not in force. 
 
The Commission put forward its proposal for a regula tion on the indication of the country of origin 
on 16 December 2005.  Following the entry into force of the Lisbon Treaty, the European Parliament 
became co-legislator on this proposal, which is to  be adopted according to the ordinary legislative 
procedure. Following the adoption of the Resolution of the European Parliament in October 2010, the 
discussions are going on in the Council, who is not legally constrained by any  time-limit at this stage 
of the procedure.  Question 7 
Pudiera la Unión Europea explicar la aplicación del "cuadro Meursing" para determinar los aranceles 
aduaneros de los productos agrícolas elabor ados sobre la base de su composición. 
Answer 
The explanation concerning the calculation of cust om duties in relation with the composition are 
contained in Annex 1 to the EU sche dule resulting from the Uruguay Round.  
 
Question 8 
Pudiera la Unión Europea explicar la Directiva de l IVA e impuestos especiales de consumo, así como 
cualquier otro derecho o carga aplicados a productos importados. 
 Answer 
VAT Directive' is effectively a recast of the Sixt h VAT Directive of 1977 as amended over the years. 
The VAT due on any sale is a percentage of the sale  price but from this the taxable person is entitled 
to deduct all the tax already paid at the precedi ng stage.  Therefore, double taxation is avoided and 
tax is paid only on the value added at each stage of production and distribution.  In this way, as the WT/TPR/M/248/Add.1 
Page 196  
 
 final price of the product is equal to the sum of the values added at each preceding stage, the final 
VAT paid is made up of the sum of the VAT paid at each stage.  Registered VAT traders are given a number and ha ve to show the VAT charged to customers on 
invoices.  In this way, the customer, if he is a registered trader, knows how much he can deduct in 
turn and the consumer knows how much tax he has paid on the final product.  In this way the correct 
VAT is paid in stages and to a de gree the system is self-policing. 
More information can be found on http://ec.europa.eu /taxation_customs/taxation /vat/how_vat_works/index_en.htm  
 
Excise duties are indirect taxes on the consumption or  the use of certain products. In contrast to 
Value Added Tax (VAT), they are mainly specific taxes, i.e. expressed as a monetary amount per 
quantity of the product.  The most commonly applied excise duties are those on  ·alcoholic beverages,  ·manufactured tobacco products and  
·energy products (motor fuels and heating fuels, such  as petrol and gasoline, electricity, natural gas, 
coal and coke).  All EU Member States apply excise duties to these th ree product categories.  The revenue from excise 
duties accrues entirely to the Member States.  More information can be found on: http://ec. europa.eu/taxation_customs/taxation/excise_duties 
/index_en.htm  
 
Question 9 
En caso de conflicto para un producto entre los regl amentos técnicos y procedimientos de evaluación 
de la conformidad adoptados  a ni vel nacional y a nivel de la Comunidad, ¿Cual prevalece en el caso 
de los productos importados que entran  a un territorio de la Unión Europea? 
Answer 
Technical regulations and conformity assessment procedures adopted at national and EU levels apply 
to different products or their different aspects.  As  pointed out in the Report by the Secretariat, only 
products (or aspects thereof) that are not covered by the EU's "fully  harmonizing" legislation may be 
subject to national technical regulations  or conformity assessment procedures. 
 
Question 10 
¿Es posible para cualquier agente económico en Finlandia y Suecia, importar bebidas alcohólicas 
directamente y cuál es el  trato que reciben las bebidas importadas en estos países cuando la 
importación se hace por otro parte de la Comunidad y se lleva a Finlandia y Suecia? 
 
Answer 
Under the Swedish and Finnish Laws on Alcohol, th e state-owned alcohol retailing outlets have the 
legal monopoly to sell alcohol beverages direc tly to consumers. Under the Laws, professional 
importation of wine, strong beer and/or spirit drin ks into Sweden and Finland is subject to the 
possession of a production license or a wholesale license.  
 
Question 11 
¿Existen mecanismos públicos, fiables y continuos de obtener información y estadísticas en relación 
con las detenciones de embarques importados  y las causas de esas detenciones por país? 
Answer 
As far as suspected infringements of IPR are concerned, each year the Commission publishes a report 
on EU customs enforcement of IPR at the external border collecting data only on goods that are intercepted using procedures defined in  Council Regulation (CE) 1383/2003. The data is 
provided by EU Member States which forward results relating to IPR infringements to the WT/TPR/M/248/Add.1 
Page 197 
 
 
  Commission on a quarterly basis, in accordance w ith Article 8 of Commission Regulation (EC) 
1891/2004. These statistics contain information ab out detentions made under customs procedures 
including data on the description and quantities of the goods, their provenance, the means of 
transport and the type of intellectual pr operty right that has been infringed. 
 
Question 12 ¿En cuánto a la nueva política europea sobre IED, la República Dominicana quisiera que se le aclarara 
de qué manera el mandato que se establece en el EP A, en el Artículo 62, sobre Liberalización futura, 
el cual establece un plazo de 5 años desde su entr ada en vigor para iniciar negociaciones adicionales a 
los fines de poder cumplir con los objetivos de dic ho capítulo, se verá afectado de cara a la entrada en 
vigor de dicha política y de la propuesta de Regl amento, actualmente estudiada por los organismos 
europeos? 
 
Answer 
The proposed Regulation establishing transitional a rrangements for bilateral investment agreements 
between Member States and third countries contains provisions to regulate the effects under the 
European law of the new division on competence be tween the EU and its Member States with regards 
to their BITs in relation to the future comprehensive European inter national investment policy. Article 
62 of the EPA refers to liberalisation measures, wh ich the EU has been negotiating even before the 
entry into force of the Lisbon Treaty, both within the context of multilateral and bilateral negotiations. 
Consequently, the Regulation will have no impact on the future implementation of the said article.   
 
Question 13 
Por otro lado, según lo expuesto en el documento WT/TPR/S/248, Página 197, Párrafo 43 sobre la 
política de la UE en materia de inversión extranjera directa y los acuerdos BITs:  la Comisión señala 
que "es cuestionable el hecho de que sigan ex istiendo acuerdos internacionales de los Estados 
Miembros sobre inversión, y los compromisos a dquiridos en su marco, habida cuenta de la 
competencia exclusiva de la UE en materia de inversión extranjera directa"  
 ¿La República Dominicana quisiera se le explique qué implicación tiene esto sobre los acuerdos previos a dicha disposición, y más aún sobre las inversión realizadas bajo el amparo de los 
compromisos adquiridos mediante los mismos?   Answer 
The Commission has tabled a proposal for a Regul ation establishing transitional arrangements for 
bilateral investment agreements between Member  States and third countries.  The proposed 
Regulation reinforces with regards to European law th e status of the bilateral investment agreements 
concluded by Member States with third countries, which are and remain valid under international 
law.  In accordance with its provisions, bilat eral investment agreements between Member States and 
third countries would be maintained in force, in orde r to ensure the necessary level of protection for 
investors, should the Regulation be adopted as such by the Council and European Parliament.  
 
Inversión 
 
El tratado de Lisboa le atribuye a la Unión Eur opea competencias exclusivas en materia de inversión, 
haciendo que en lo adelante sea ést a el ente competente para nego ciar Acuerdos Internacionales de 
Inversión con terceros países, y no los Estados Mi embros, a menos que éstos  estén facultados para 
ello por la Unión Europea.  
 
Question 14 
¿En tal sentido, interesa saber cómo se estructurar ían futuras negociaciones y en especial, saber si 
como parte de esta nueva política, la Unión Europe a contempla revisar algunos Acuerdos Bilaterales WT/TPR/M/248/Add.1 
Page 198  
 
 de Inversión vigentes, incluidos los firmados por la República Dominicana con varios países 
miembros de la Unión Europea?    
Answer 
Please see also answer to question 13 with regards to existing BITs.  The draft Regulation would, if 
adopted as such, moreover establish the conditi ons and the procedure under which Member States 
would be empowered to negotiate new bilateral in vestment agreements or re-negotiate existing ones. 
As far as future investment protection agreements at EU level are concerned, the Commission has 
already presented in its Communication towards a comprehensive European international investment 
policy the criteria for selecting future negotiating partners.  
 
Question 15 
Con el objetivo de garantizar la seguridad jurídi ca, los Estados miembros están autorizados para 
mantener en vigor los Acuerdos Bilaterales de  Inversión (BITS), que notifiquen a la Comisión 
Europea, la que puede retirar la autorización en el caso de Acuerdos incompatibles con la legislación 
de la Unión Europea, aquellos que dupliquen acuer dos existentes entre la Unión Europea y terceros 
países, o aquellos que lesionen la política de inversiones de la Uni ón Europea. Los Estados miembros 
también deben notificar a la Comisión Europea, la modificación de BITS vigentes, la concertación de nuevos acuerdos o solicitar su autorización a esos efectos.  ¿En ese sentido, y considerando los múltiples  BI TS celebrados entre la República Dominicana y 
varios países miembros de la Unión Europea, se debe n tener en cuenta los cambios que puedan afectar 
los BITS de República Dominicana, cuestionarse la s medidas que pudiesen restringir o modificar las 
condiciones para el movimientos de capital entre nu estros países y confirmar si para mantener en 
vigor nuestros BITS se requeriría un procedimiento de notificación adicional?   
 
Answer 
The proposed Regulation establishing transitional a rrangements for bilateral investment agreements 
between Member States and third countries contains provisions to regulate the effects under the European law of the new division on competence be tween the EU and its Member States with regards 
to their BITs in relation to the future compreh ensive European international investment policy.  
 This future Regulation if adopted as such by the Council and the European Parliament would 
establish the conditions and the procedure under which Member States would be empowered to 
negotiate new bilateral investment agreements or re-negotiate existing ones.  Since the proposed 
Regulation is still under discussion between relevant  EU institutions, no further information is 
available at this stage.   
 
Question 16 
A pesar de los procesos de liberali zación acordados para el acceso a mercados en materia de servicios, 
se mantienen en vigor prescripciones que restringen el  comercio de servicios dentro de la Unión 
Europea. 
 
¿En tal sentido, interesa saber las medidas que to maría la Unión Europea para disminuir dichos 
obstáculos, lo que resulta de gran interés para Re pública Dominicana, en especial, en el marco del 
Acuerdo de Asociación Económic a Cariforo-Unión Europea y del comercio de servicios 
profesionales. A tales efectos, los procedimientos de autorización de los proveedores de servicios, 
deben aplicarse de modo no discriminatorio, propor cionado, justificado por  razones de interés 
público?  Answer 
Discussions are on-going on an EU-wide directive to  further harmonize the European Single Market 
in services.  WT/TPR/M/248/Add.1 
Page 199 
 
 
  As regards the EPA's provisions on services and procedures for authorising service providers, we 
would refer the Dominican Republic to the conclusions of the CARIFORUM-EU Trade and 
Development Committee, which recently met for the first time. The CARICOM Secretariat's 
CARIFORUM Directorate are curren tly finalising these conclusions and will soon send them to all 
CARIFORUM Member States.  
 
Question 17 
La UE, aplica aranceles mixtos para los productos de la agropecuaria principalmente, disponen de sus 
equivalentes ad valorem, para convertirlos a ad  valorem cuando se hace necesario, también utiliza 
derechos estacionales y derechos reducidos cuando  el precio declarado de un producto está por 
encima de cierto nivel (régimen de precios de entrad a).  Los precios de entrada se aplican a 28 líneas 
arancelarias a nivel de 8 dígitos, en particular a los tomates, pepinos, calabacines, cítricos, uvas, 
albaricoques y  ciruelas  "garantiza la aplicación uniforme [de estas medidas] por todos los Estados 
miembros y da a todos los operadores económicos una  visión clara de todas las medidas que se deben 
adoptar al importar o exportar productos".  Los códi gos en el marco de TARIC se establecen a nivel 
de 10 dígitos? 
¿En la parte relativa a los precios de entrada para las 28 líneas arancelarias que aplica la UE, la 
República Dominicana debido al EPA, no resulta  af ectada en esta materia, debido a que tenemos 
acceso inmediato en bienes? 
 
Answer 
The entry price system as well as seasonal tar iffs for fruit and vegetables are bound in the EU WTO 
schedule. EU Member States being part of a cust oms union all apply the same import tariffs. 
 Regarding the question in relation to TARIC, the Do minican Republic is inv ited to consult the TARIC 
website: 
http://ec.europa.eu/taxation_customs/dds2/taric/ta ric_consultation.jsp?Lang=en&redirectionDate=2
0110630.#  In relation to the EPA part of the question, th e Dominican Republic as member of the EU-
CARIFORUM EPA has duty free and quota f ree (DFQF) access to the EU market 
 
Question 18 La UE, debe de dar explicaciones más detalladas de l caso de monopolio de Suecia, con relación a la 
empresa que es la única que puede realizar importaciones de bebidas alcohólicas. 
 
Answer 
Under the Swedish Law on Alcohol, the state-owne d alcohol retailing outlets (Systembolaget) has 
the legal monopoly to sell beverages over 3.5% alcohol  by volume directly to consumers.  Under 
the Law, professional importation of wine, strong b eer and/or spirit drinks into Sweden is subject 
to the possession of a production license or a wholesale license.  Question 19 
Suministrar directamente los impuestos especiales aplicados a las bebidas alcohólicas, debido a que 
las direcciones suministradas no nos permiten accesar a la información. 
Suministrar directamente la información de los demás derechos y cargas aplicados a las importaciones. 
 
Answer 
Please refer to the following websites, which contain up-to-date information:  http://ec.europa.eu/taxation_customs/taxation/exci se_duties/alcoholic_beverages/rates/index_en.htm, 
and  http://ec.europa.eu/taxation_customs/taxation/ gen_info/info_docs/tax_inventory/index_en.htm. WT/TPR/M/248/Add.1 
Page 200  
 
 Question 20 
En materia de contratación pública en la UE , observamos que mantienen los principios de 
transparencia, trato equitativo y no discriminatorio, por lo que la finalidad de la política de contratación pública de la UE es alcanzar la mayor ef iciencia en la utilización de los recursos a través 
de procedimientos abiertos, transparentes y no discriminatorios, compatibles con los objetivos 
subyacentes del Mercado Interno.  Todos los contrato s formalizados en la Unión Europea por encima 
de determinados umbrales deben cumplir las prescripciones de las Directivas comunitarias sobre contratación, que se reflejan en las leyes y los regl amentos pertinentes de los Estados miembros de la 
UE.  Concretamente, los contratos por encima de  los umbrales establecidos deben ser anunciados a 
nivel comunitario y deben seguir pr ocedimientos uniformes. ¿Por otra parte, dado que la UE es parte 
en el Acuerdo sobre Contratación Pública (ACP) de  la OMC, las propias Directivas, además de la 
legislación de los Estados miembros , deben ser conformes al ACP? 
Answer 
The EU procurement Directives (2004/17/EC and 2004/ 18/EC) implement the rules of the GPA.  The 
Directives are transposed into national legislatio n of the EU Member States.  Therefore, the 
procurement legislation of the Member States comp lies with the GPA rules.  The EU controls the 
transposition of the Directives.  
 
Question 21 
La UE es un importante participan te en la renegociación en curso del Acuerdo sobre Contratación 
P ú b l i c a  e n  l a  O M C .   A d e m á s  d e l  A C P ,  l a  U E  ha firmado varios acue rdos bilaterales sobre 
contratación pública.  En muchos casos, los textos  de estos acuerdos se basan en el ACP. ¿Tendrían 
consecuencias negativas las posiciones adoptadas por la UE en las negociaciones sobre el ACP? y en 
las negociaciones bilaterales tendrán consecuenci as significativas para el futuro del Acuerdo? 
Answer 
The EU is an advocate of an ambi tious opening of international p ublic procurement markets together 
with the setting up of modern and efficient proc urement systems.  It has done so through the 
conclusion of international procurement agreemen ts such as the WTO Government Procurement 
Agreement and bilateral Free Trade Agreements. In its bilateral agreements, the EU promotes the negot iation of procurement provisions in accord with 
the GPA standards and disciplines.  In doing so , it makes sure that nothing in those bilateral 
agreements may impact negatively its commitmen t to the GPA procedures and market access 
obligations.  Also, where appropriate, the EU attemp ts to include commitments by its negotiation 
partners to consider accession to the GPA, if they ha ve not yet done so.  The EU contributes therefore 
to the dissemination of the GPA standards among ot her WTO members not yet Parties to the GPA and 
promotes this way the expansion of the Agreement's membership.  In its bilateral agreements with 
Parties to the GPA, the EU also seeks to build up on  the procedural elements already included in the 
GPA and/or to broaden the ma rket access commitments.  
 
Question 22 
Observamos que en el periodo de crisis, no se impus o la obligación de adquirir productos locales a 
través de la contratación pública, manteniendo así su s principios, sin embargo hacen referencia a que 
en el Reino Unido, las empresas extranjeras están excluidas de las licitaciones para los contratos de 
tecnología de la información del sector público nacional. 
¿Sobre el particular nos interesa que la Unión Europea, nos detalle más de esta exclusión que 
consideramos constituye un trato discriminatorio?  
Answer 
The EU guarantees a legally certain access to those parts  of its procurement market that is covered 
by the EU's commitments under the GPA.  WT/TPR/M/248/Add.1 
Page 201 
 
 
  The EU believes that the Dominican Republic refers to the case described in the Secretariat's report 
that concerns procurement below the GPA thresholds .  The GPA applies to procurement from certain 
thresholds only.  The EU (or any other GPA Party)  has not taken any commitments for procurement 
below these thresholds 
Question 23 
Interesa cuestionar la organización y disponibilidad de  la información de la Unión Europea, en lo 
concerniente a los servicios profesionales, muy especialmente para temas como la homologación. 
Esto así, permitiría en gran medida organizar y centr alizar la misma; saber con mayor precisión cuáles 
prerrogativas existen en beneficio de los países que , como República Dominicana están interesados en 
suministrar dichos servicios, conocer los procedim ientos requeridos y hacer más viable el proceso.   
 Answer 
The integration of the European Union's single ma rket for services is an on-going process, pursued 
via the adoption of several Directives at the EU leve l.  Among them, the Professional Qualifications 
Directive focuses particularly on the recognition of professional qualifications within the EU and 
introduces a minimum level of harmonization for prof essions in the health sector and architects.  The 
specific authorization requirements for the supply of professional services by third country nationals 
are adopted by individual Member States, with  due respect to the specific commitments of 
liberalization made both under the GATS an d under bilateral free trade agreements 
 Question 24 
¿Nos pueden confirmar si la Unión Europea otor ga Resoluciones Anticipadas sobre el  método de 
valoración a utilizarse en aduanas? ¿En caso de ser  negativo, podrían explicar las motivaciones por 
esta decisión?  
Por último, Cabe señalar que en apego al procedim iento establecido por la OMC para estos procesos, 
nos acogemos al derecho que se concede a los pa íses Miembros de dicha Organización, para la 
remisión de una nueva consulta en los días subsiguientes a la presentación.  
 
Answer 
The EU Customs law does not provide for advance rulings on customs valuation methods, and currently, we have no plans to introduce binding rulings with respect to customs valuation. 
 
However, we are conscious of the fact that this  issue is being considered in DDA negotiations, and 
that the contribution to trade facilitation has b een underlined in work done by various bodies. 
 
CANADA 
 
Report by the European Union (WT/TPR/G/248)  III. KEY DEVELOPMENTS IN THE EU TRADE POLICY (2009-2010) 3.6 Sustainability and development 3.6.1 Trade and sustainable development 
 
Paragraph 112, page 24 
Paragraph 112 of the European Union's Report make s reference to the high awareness within the EU 
on the need to safeguard and support direct effort s to mitigate and adapt to climate change with 
complementary trade policies.  
 
Question 1 
In this context, in the development of further trad e policy tools that may be significant with regard to 
climate change, how will the EU ensure alignm ent of sustainability criteria included in these WT/TPR/M/248/Add.1 
Page 202  
 
 voluntary/private labelling and certification schemes with internationally accepted and science-based 
sustainability criteria and indicators (examples relate d to sustainable forest management include the 
Montreal Process and Forest Europe)? 
 
Answer  
The EU does not intend to regulate the sustainability  criteria of voluntary/private labelling and forest 
certification schemes, as it recognizes the market -based nature of such schemes.   
 Report by the Secretariat (WT/TPR/S/248)  
Summary 
 Paragraph 11, page vii 
The Secretariat's Report states that "Major copyright  and patent reforms are on-going, but efforts to 
create a unitary EU patent and a unified patent court have not been successful." 
 
Question 2 
What obstacles has the EU encountered that have hind ered the creation of a unitary EU patent court? 
 
Answer  
The creation of a unified and specialised patent cour t was first proposed by the Commission as part of 
the reform of the patent system in the EU in 2007.   In 2009, intense discussions among the 27 EU 
Member States in the Council led to a political ag reement on the main architecture and elements of 
this future patent court.  In particular, the Counc il agreed that the unified patent court should have 
competence for both existing European patents and future EU-wide patents and should be created by 
an international agreement among the EU, its Member States and other states that are party to the 
European Patent Convention.  Also in 2009, the C ouncil requested the Court of Justice of the EU for 
its opinion on the compatibility of this draft agreem ent creating the unified patent court with the EU 
founding Treaties. In March 2011, the Court of Jus tice concluded that the agreement in its current 
state was not compatible with the EU Treaties.   The EU and its Member States are now working on 
the revision of the agreement in the light of the opinion of the Court of Justice.  
 
Question 3 
Furthermore, paragraph 11 states that "the Comm ission is seeking alternatives to unified patent 
protection in the EU".  What alternatives has/is the EU undertaking to the development of unified patent protection in the 
EU? 
 
Answer  
While all 27 Member States could not reach a unani mous agreement on the translation regime for the 
EU patent, the vast majority of the Member St ates saw value in the creation of unitary patent 
protection in Europe.  Therefore, at their requ est, the Commission presented a proposal to launch 
enhanced cooperation in this area. In March 2011, 25 Member States were aut horized by the Council 
to establish enhanced cooperation in the area of unitary patent protection.   Two proposals for the implementing regulations were  adopted by the Commission in April 2011. The 
first proposal sets out the substantive rules on obtai ning unitary effect for granted European patents, 
and the second contains the transla tion arrangements for the granted patents. Once adopted by the 
Council and the European Parliament, inventors can obtain unitary effect to their European patents 
by submitting a single application for the territories of 25 Member States. 
 WT/TPR/M/248/Add.1 
Page 203 
 
 
  III. TRADE POLICIES AND PRACTICES BY MEASURE 
(1) M EASURES DIRECTLY AFFECTING IMPORTS  
(iv) Tariffs 
(a) MFN tariff 
Paragraph 33 and Table III.2, page 35 
Regarding the changes in the EU customs tariff over 2006-2011, which have reduced the number of 
tariff lines by 144 lines from 2006 to 2008 and by a further 405 lines between 2008 and 2011:  
Question 4 
Could the EU elaborate on the nature of the changes to its tariff structure? For example, while the 
overall result appears to be a decrease in the numbe r of tariff lines, were there areas in which there 
were new break-outs created?  What were the criteria and rationale for these changes?   
 
Answer  
The EU's continuously modernise and improve its nomenclature by adding codes related to new 
products for which the collection of statistical dat a is regarded as necessary or deleting codes which 
are deemed to be obsolete with the global ai m of reducing the overall number of codes.  
 Question 5 
Could the EU please provide additional informatio n on which specific sectors were affected, and 
whether the majority of changes were to create additional lines, or consolidate existing lines? 
 
Answer  
The sectors mostly targeted by such modernisation and improvem ents of the nomenclature are 
chapters 25 to 96 of the HS nomenclature.  The c hanges brought to the nomenclature and which are 
spread all over these sectors, are limited to the deletion or the creation of codes for the reasons 
explained above (collection of statistical data for newly traded products or deletion of codes related 
to products no longer exchanged).  All codes are consolidated.  Question 6 
Were these changes to the structure of the tariff asso ciated with changes to applied rates? If so, please 
explain. 
 
Answer  
No.  The amendments to the nomenclature are not associated with changes to applied rates. 
III. TRADE POLICIES AND PRACTICES BY MEASURE (1) 
MEASURES DIRECTLY AFFECTING IMPORTS  
(iv) Tariffs 
(c) Tariff Suspensions 
Paragraphs 40-41, page 37 
Canada notes that certain autonomous tariff suspensi ons in the EU do not apply to an entire 8 digit 
tariff line. In these cases, the autonomous tariff suspension is based upon a specific end use or a 
specific product that could fall under the 8 digit tari ff line, along with other products classified under 
that line.   
 
Question 7 
Could the EU please describe how it ensures that the autonomous tariff suspension is administered to 
the appropriate good(s) that are imported under a specific 8 digit tariff line?    WT/TPR/M/248/Add.1 
Page 204  
 
 Answer  
Certain autonomous tariff suspensions concern  goods unambiguously defined at 8 digit level. 
For example:  
 
 
In such a case the declaration at 8 digit level (0811 90 50) is sufficient to ascertain that the  
autonomous tariff suspension that the declarant has requested is granted to the appropriate goods. 
The codes at 8 digit level are published in th e regulation defining the autonomous suspensions, 
thereby guaranteeing clarity of information for the traders.  In other cases, the autonomous tar iff suspension concerns only part of the products falling under the 8 
digit code. 
For example, the following product:   Guava puree concentrate: 
— of the genus Psidium,  — of a brix value of 20,  
For use in the manufacture of fruit juices is grant ed an autonomous suspensi on and falls under the 8 
digit code:  2008 99 48. However, the 8 digit nomenclature is not sufficie nt to define the product unambiguously (see extract 
from the 8 digit nomenclature below): 
 
 
 WT/TPR/M/248/Add.1 
Page 205 
 
 
  Therefore, code 2008 99 48 is broken down  in the following way at 10 digit level: 
 
 
 
The codes at 10 digit level are published in the regulation defining the autonomous suspensions, 
thereby guaranteeing clarity of information for the traders. 
The existence of these 10 digit codes forbids the traders from declaring an 8 digit code in the customs 
declaration. In this example, if the trader ent ers 2008 99 48 in the customs declar ation, the declaration will be 
rejected because there are codes at 10 digit level  below 2008 99 48.  Therefore, the trader will be 
required to enter 2008 99 48 20 in the declarati on if he/she wants to benefit from the autonomous 
suspension.  III. TRADE POLICIES AND PRACTICES BY MEASURE (1) 
MEASURES DIRECTLY AFFECTING IMPORTS  
(vi) Contingency Measures 
Paragraph 50, pages 39 
 Question 8 
The Secretariat's Report makes specific reference to the possibility of a future review of contingency 
instruments, not only in light of whether such inst ruments should be further refined to improve their 
effectiveness but also in light of any changes th at could be necessitated by the Doha Round results.  
 
In this context, could the EU please provide details  of the process by which such a review would be 
undertaken and conducted, particularly any allowa nce for the submission of briefs, the holding of 
public hearings, and the submission of recommenda tions by the appropriate reviewing body.  
 
Answer  
In December 2010 the European Commission has awarded a contract for an evaluation of the 
European Union's trade defence instruments.  Depe nding on the results of the study or the completion 
of the Doha Development round, the Commission may envisage taking other measures to further 
refine the EU's trade defence instruments.  The stud y is envisaged to be completed by the end of 2011 
but the timing for implementation of any ot her measures, if any, is still not clear. 
 
Question 9 
Does the EU plan to include the impact of recen t WTO Panel and Appellate Body decisions as an 
appropriate issue for consideration in any revi ew it may undertake on contingency measures?  WT/TPR/M/248/Add.1 
Page 206  
 
 Answer  
Please refer to reply to Question 8. 
 
Question 10 
The Secretariat Report also states that the Commission and the Member States have agreed on ways to improve transparency in investigations.  Coul d the EU please provide further details on these 
improvements? 
 
Answer  
Please refer to reply to Question 8. 
 
III. TRADE POLICIES AND PRACTICES BY MEASURE (1) 
MEASURES DIRECTLY AFFECTING IMPORTS  
(vi) Contingency Measures 
(a) Anti-dumping and countervailing duties 
Para 53, page 40 
The Secretariat Report states that the main EU le gislation concerning anti-dumping is contained in 
Regulation No. 1225/2009. Para 4 of Article 9 of Regulation No. 1225/2009 states that the amount of the anti-dumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Community industry.  
 
Question 11  
Please provide details of the EU's process for dete rmining whether to impose an anti-dumping duty 
less than the margin of dumping, including the considerations, criteria and methodology used in 
determining whether the lesser duty is sufficient to  remove injury to the Community industry.   
 Answer  
Paragraph 4 of Article 9 provides that the am ount of the anti-dumping duty shall not exceed the 
margin of dumping established but it should be l ess than the margin if such lesser duty would be 
adequate to remove the injury to the Community indu stry.  So, either the dumping margin is lower 
than the margin of injury and consequently the level  of duty is limited to the dumping margin, or the 
dumping margin is higher than the injury margin and c onsequently the amount of the duty is based on 
the injury margin.  The in jury margin is established by comparing the price of dumped imports with 
the price at which EU producers' transactions of the like product do not result in injury.  The latter 
"non-injurious" price will typically correspond to th e price at which the Union industry would be able 
to sell the like product in a fair market environment.   
III. TRADE POLICIES AND PRACTICES BY MEASURE 
(1) M
EASURES DIRECTLY AFFECTING IMPORTS  
(vi) Contingency Measures:  
(a) Anti-dumping and countervailing duties 
Para 54, page 40 
The Secretariat Report states that, "the adoption of AD and CV measures is subject to the new comitology rules that entered into force in March 2011." 
 
Question 12 
Could the EU please describe the practical effects that the Commission's new comitology rules have 
had, or are anticipated to have, on the conduct of tr ade remedy investigations and the application of 
trade remedy measures in the European Union? WT/TPR/M/248/Add.1 
Page 207 
 
 
  Answer  
In practice Regulation (EU) No 18 2/2011 laying down the rules and general principles concerning 
mechanisms for control by Member States of the Commission's exercise of implementing powers ("the 
Comitology Regulation") has shifted the power for adopting implementing acts (such as the adoption 
of definitive AD and CV measures) from the Council to the European Commission.  That means that 
trade remedy investigations will s till be conducted by the Commission but  that trade remedy measures 
will be applied by the Commission instead of the Council.  However, the Comitology Regulation 
foresees that the Commission's exercise of implemen ting powers will be subject to control by the 
Member States through its Article 8 for provisional  measures and through the examination procedure 
for definitive measures.  
 
In order to align the basic anti-dumping and anti-s ubsidy Regulations to the Comitology Regulation, 
the Commission has made a proposal to the European Parliament and Council (the co-legislators) on 
7 March 2011 for a Regulation amending certain regulations relating to the common commercial policy as regards the procedures for the adoptio n of certain measures (COM(2011) 82 final of 
7.3.2011, 2011/0039 (COD)) ("th e Omnibus proposal").  Until the co-legislators adopt the Omnibus 
proposal, trade remedy measures will continue to be  applied by the Council.  The discussions within 
the co-legislators are still at an early phase and therefore it is not yet clear when the Omnibus 
proposal will be adopted. 
 
Question 13 
Table III.4 on Page 40 and Table III.6 on page 42 re port that certain anti-dumping and countervailing 
duty measures expire automatically after five years, presumably without review.  Please provide the legislative, regulatory and/or polic y background to the expiration of such measures.  
 
Answer  
AD regulation: Council Regulation (EC) No 1225/2009 
Article 11 
1. An anti-dumping measure shall remain in force only as long as, and to the extent that, it is 
necessary to counteract the dumpi ng which is causing injury. 
2. A definitive anti-dumping measure shall exp ire five years from its imposition or five years 
from the date of the conclusion of the most recent review which has covered both dumping and injury, 
unless it is determined in a review that the expiry would be likely to lead to a continuation or 
recurrence of dumping and injury. Such an expiry revi ew shall be initiated on the initiative of the 
Commission, or upon request made by or on beha lf of Community producers, and the measure shall 
remain in force pending the outcome of such review.  
AS regulation: Council Regulation (EC) No 597/2009 
Article 18 
1. A definitive countervailing measure shall expi re five years from its imposition or five years 
from the date of the most recent review which has  covered both subsidisation and injury, unless it is 
determined in a review that the expiry would be likely to lead to a continuation or recurrence of 
subsidisation and injury.  Such an expiry review shall be initiated on the initiative of the Commission, 
or upon a request made by or on behalf of Comm unity producers, and the measure shall remain in 
force pending the outcome of such review.  
2. An expiry review shall be initiated where the request contains  sufficient evidence that the 
expiry of the measures would be likely to result in a continuation or recurrence of subsidization and 
injury.  Such a likelihood may, for example, be indi cated by evidence of continued subsidization and 
injury or evidence that the removal of injury is par tly or solely due to the existence of measures or 
evidence that the circumstances of the exporters, or market conditions, are such that they would 
indicate the likelihood of further injurious subsidization.  WT/TPR/M/248/Add.1 
Page 208  
 
 III. TRADE POLICIES AND PRACTICES BY MEASURE 
(1) 
MEASURES DIRECTLY AFFECTING IMPORTS  
(vi) Contingency Measures 
(a) Anti-dumping and countervailing duties 
Paragraph 58, page 41 
The Secretariat Report states that the EU may onl y impose anti-dumping measures if such measures 
are not against the wider interest of the EU economy.   
Question14 
Could the EU please provide details of the EU's pr ocess for determining whether the imposition of an 
anti-dumping measure is against the wider interest of the EU economy, including factors typically 
taken into consideration in making such a determination?   
Answer  
The legal basis for the Community interest test is Art. 21 of the basic anti-dumping Regulation, which 
calls for an "appreciation of all the various interests taken as a whole".  In this global appreciation, 
the need to eliminate the trade distorting effect s of injurious dumping and to restore effective 
competition is given special consideration.  The test to be carried out by the Community Institutions is 
whether it can be clearly concluded that it is not in the Community interest to apply such measures. 
Firstly, of an evaluation of the likely consequen ces of the application or non-application of the 
envisaged measures on the interests of the Community  industry and of other parties covered by the 
scope of Article 21.  This means basically that a prospective assessment has to be made in order to 
establish for each group of economic operators the likely effect of taking or not-taking measures. While such prognosis has to work with hypotheses, it is not speculative but based on factual data and 
evidence.  Secondly, all the different interests examined have to be balanced against each other. In other words, 
it must be found that the disadvantage to the other interested parties would be clearly 
disproportionate to any advantages given to the Co mmunity industry by the imposition of measures.  
 III. TRADE POLICIES AND PRACTISES BY MEASURE (1) 
MEASURES DIRECTLY AFFECTING IMPORTS  
(vi) Contingency Measures 
(b) Safeguards 
Paragraph 65, page 43 
The Secretariat's Report notes that the EU may adopt safeguard provisions under the EU-Korea FTA 
and maintains similar provisions in the context of other Economic Partne rship Agreements.   
 Question 15 
Has the EU conducted an investigation and/or imposed a measure under these Economic Partnership 
Agreements? If yes, on which product(s)?  
 
Answer  
No, this instrument has not been used to date. 
 WT/TPR/M/248/Add.1 
Page 209 
 
 
  III. TRADE POLICIES AND PRACTISES BY MEASURE 
(1) MEASURES DIRECTLY AFFECTING IMPORTS  
(vii) Restrictions and controls 
Paragraph 71, page 44 
 
Question 16 
The Secretariat reports that "Under Regulation No. 995/2010, "operators" who place domestically 
produced or imported timber and timber products on th e EU market for the firs t time must exercise 
"due diligence" to minimize the risk that such pro ducts contain timber harvested in contravention of 
the applicable legislation in the country of harvest."   As per Article (2) of this Regulation, Canada 
understands that "placing on the market" means the supply by any means, irrespective of the selling 
technique used, of timber or timber products for the fi rst time on the internal market for distribution or 
use in the course of a commercial activity, whethe r in return for payment or free of charge.   
 Could the EU please explain when exactly first placi ng on the market applies for forest products 
imported into the EU? 
 
Answer  
Regulation (EU) 995/2010 (the EU Timber Regula tion; the EUTR) provides a definition in Article 
2(b) of the term "placing on the market".  Accord ing to this definition "placing on the market" means 
the supply by any means, irrespective of the selling technique used, of timber or timber products for 
the first time on the internal market for distributio n or use in the course of a commercial activity, 
whether in return for payment or free of charge.  It also includes the supply be means of distance 
communication as defined in Directive 97/7/EC on the protection of consumers in respect of distance 
contracts23.  Further, the definition states what is not  considered "placing on the market", namely the 
supply on the internal market of timber products derived from timber or timber products already 
placed in the market.  
 The European Commission intends to further clarify  the definition through specific Guidelines, to be 
elaborated with the assistance of experts from EU  Member States.  It is the intention of the 
Commission to publish such guidelines in the first half of 2012.   
Question 17 In the case of forest products produced from logs harvested in the EU, could the EU please explain 
when first placing on the market applies?  Is it when the logs are first sold to a mill in the EU? Is it 
when the "manufactured" or "finished" product is first sold on the EU market?  Answer  
Please refer to the answer to question 16. 
 
Question18 
As per Article (2) of this Regulation, Canada unde rstands that "applicable legislation" means the 
legislation in force in the country of harvest and covers a number of matters . Canada also understands 
that under Article (6.1.a) the due diligence system  referred to in Article (4.2) shall contain the 
following elements: documents or other information indicating compliance of those timber and timber 
products with the applicable legislation.  Will the two implementing measures to be develo ped by the Commission provide a more detailed 
definition of what is considered "applicable legislation"? 
                                                      
23 OJ L 144, 4.6.1997, p. 19. WT/TPR/M/248/Add.1 
Page 210  
 
 Answer  
Regulation 995/2010 do es not empower the Commission to devel op a more detailed definition of 
"applicable legislation" under the implementing measures  
 Question 19 
Could the EU please indicate what kind of documents  or information will need to be provided to 
demonstrate compliance with applicable legislation. 
 
Answer  
The appropriateness of the documents required will depend on the legislation in the country of 
harvest.  EU operators will have to inform th emselves about which documents are considered 
appropriate and sufficient to  demonstrate legality of the harvested timber in the country of harvest. as 
well as taking into account other relevant information. 
 III. TRADE POLICIES AND PRACTICES BY MEASURE 
(1) 
MEASURES DIRECTLY AFFECTING IMPORTS  
(viii) Technical regulations and standards 
Paragraph 76, page 46 
The Secretariat Report refers to new technical regulations and conformity assessment regulations 
notified by the European Union between 2008 and 2011.   Question 20 
Could the EU please provide an exhaustive statemen t and explanation of all the objectives it is trying 
to fulfill through the regulations concerning seal produc ts that came into force in August 2010, i.e. 
Regulation (EC) No. 1007/2009 restricting trade in  seal products, and Regulation (EU) No. 737/2010 
outlining how trade restrictions on seal products are to be implemented? 
 
Answer  
The EU would like to recall that Regulation (E C) of the European Parliament and Council No. 
1007/2009 on trade in seal products, and its implem enting Regulation (EU) No. 737/2010 have been 
recently challenged by Canada.  WTO dispute settleme nt consultations which were held both in 2009 
(only on the basic Regulation) and 2010 (also on the Implementing Regulation) failed to solve the 
issue.  As a consequence, Canada requested a panel which was established on 25 March 2011.  
 Therefore, in view of the on-going dispute on the ma tter and the fact that the issues raised in the 
questions have already been discussed in the cons ultations, the EU refers Canada to the replies given 
by the EU to the same questions during the consultations. 
 
Question 21 
The EU's notifications to the WTO TBT Committee concerning seal products refer to harmonization 
and animal welfare considerations.  Could the EU  explain what, specifically, the animal welfare 
considerations are, and indicate what evidence the EU possesses, if any, that supports the accuracy of 
those animal welfare considerations?  Could the EU  explain the relationship, if any, between the 
animal welfare considerations and the policy obj ectives identified in its answer to question 20? 
 
Answer  
Please refer to the reply to question 20  
Question 22 Could the EU explain how the Regulation (EC) No. 1007/2009 and the Regulation (EU) 
No. 737/2010 R fulfill the objectives identified in its answer to Question 20? 
 WT/TPR/M/248/Add.1 
Page 211 
 
 
  Answer  
Please refer to the reply to question 20. 
 Question 23 
Could the EU explain why, specifically, less restri ctive measures, such as labelling requirements or 
monitoring or verification of compliance with animal  welfare requirements, are not sufficient to fulfill 
the objectives it set out in its answer to Question 20?   
Answer  
Please refer to the reply to question 20. 
 
Question 24 
Could the EU explain the risks that non-fulfilment of the EU's objectives would create? Could the EU 
answer this question with reference to the obj ectives it set out in its answer to Question 20? 
 
Answer  
Please refer to the reply to question 20. 
 III. TRADE POLICIES AND PRACTICES BY MEASURE (1) 
MEASURES DIRECTLY AFFECTING IMPORTS  
(viii) Technical regulations and standards 
Paragraph 86, page 51: 
The Secretariat Report notes that under the "new appr oach", technical regulations adopted at the EU 
level contain performance-based "essential requireme nts", leaving manufacturers free to determine the 
technical characteristics to comply.  Harmonized st andards provide technical solutions conferring a 
presumption of conformity with the essential requirements. Article 17.5 of the Regulation (EU) 
No 305/2011 of the European Parliament and of the Council, of 9 March 2011 laying down 
harmonized conditions for the marketing of constr uction products (Constructi on Products Regulation) 
provides that from the date of the end of the coexis tence period, the harmonized standard shall be the 
only means used for drawing up a declaration of pe rformance for a construction product covered by it.  
 
Question 25 
Given this article, could the EU still accept as equi valent a technical regulation of another Member 
related to a particular construction product if that Member demonstrated, pursuant to Article 2.7 of the 
WTO TBT Agreement, that its technical regula tion fulfilled the essential requirements under the 
Construction Products Regulation?  Answer  
Any request for equivalence from a WTO Member c onsidering that its technical regulation fulfils the 
objectives and all applicable requirements of th e Construction Products Regulation would be 
examined in accordance with Ar ticle 2.7 of the TBT Agreement. 
 
III. TRADE POLICIES AND PRACTICES BY MEASURE 
(1) MEASURES DIRECTLY AFFECTING IMPORTS  
(ix) Sanitary and phytosanitary standards (SPS) 
Paragraph 112, page 58 
Canada notes that the EU restricts imports of produc ts derived from pigs that have been given feed 
containing ractopamine hydrochloride.  Canada would like to point out that the Joint FAO/WHO 
Expert Committee on Food Additive (JECFA) has comp leted a risk assessment on ractopamine, and it 
supports the adoption by the Codex Alimentarius Commission of MRLs for muscles, fat, kidney and 
liver. WT/TPR/M/248/Add.1 
Page 212  
 
 Question 26 
We understand that the European Food Safety Agen cy (EFSA) has provided an opinion on the JECFA 
safety evaluation of ractopamine.  However, Canada would like to know whether EFSA has 
completed its own risk assessment as a basis for its current import restrictions.  If a risk assessment has indeed been completed, Canada requests a c opy and an opportunity to provide comments.   
 
Answer  
The assessment carried out by EFSA is limited to a review of the JECFA risk assessment leading to 
the proposed maximum residue levels (MRL), and oth er relevant scientific information, in order to 
establish if there were any scientific grounds for con cern, in particular any information  which would 
call into question the scientific grounds for the JE CFA evaluation and/or on the safety of food and  
food products from animals treated with ractopami ne.  The assessment of other relevant issues, 
particularly safety for the target species and product quality, is given in the appendices of the 
opinion.  On request of EFSA, the producer of ract opamine made available the original reports and 
studies already sent to EMEA when  applying for setti ng MRL's for ractopamine.  The full text of the 
scientific opinion is available at:  http://www. efsa.europa.eu/en/efsajournal /pub/1041.htm.  
 No other specific risk assessment has been carried out.  Question 27 
If the EU has not completed such a risk assessment, Canada would appreciate to be informed what data or other safety evaluation supports the EU's current measures. 
 
Answer  
The ban on beta-agonists was established by Council Directive 96/22/EC in 1996 following a series of 
severe food poisonings arising from the fraudulent use of compounds belonging to the family of beta-
agonists. 
 Question 28 
Canada notes that the Secretariat Report observes that there are no statutory limitations regarding the 
duration of the process to approve fi rst-time imports of live animals a nd products of animal origin.   
 
What is the average time frame for this process? 
 
Answer  
The duration of this process is depending on the co-operation and performance of the third country 
concerned.  If the informati on asked for in the guidance 
(http://ec.europa.eu/food/international/trade/guide _thirdcountries2009_en.pdf) is made available 
rapidly and the FVO inspection can be carried out rapidly, the time for listing the relevant third 
country for a specific commodity would be shorter than in case of when short comings are found 
during inspections.  However, the EU cannot provid e for any limitations of the duration as it is 
entirely up to the Third Country concerned to fulfil  the conditions and to provide the guarantees. 
 
III. TRADE POLICIES AND PRACTICES BY MEASURE: 
(1) MEASURES DIRECTLY AFFECTING IMPORTS  
(ix) Sanitary and phytosanitary standards (SPS) 
Paragraph 116, page 59 
Canada acknowledges the EU's recent initiative for a Regulation laying down the methods of 
sampling and analysis for the official control of feed with respect to the presence of genetically 
modified material for which an authorization procedure is pending or the authorization of which has expired as a positive step that may help avoid unnecess ary and costly disruptions of trade in animal WT/TPR/M/248/Add.1 
Page 213 
 
 
  feed.  The Regulation emphasizes the importance of re liable, reproducible results  when testing for low 
level presence of genetically modified material au thorized in a third country but not in the EU. 
 
Question 29   
Could the EU explain the scientific rationale for the exclusion of food from this measure? 
 Answer  
Regulation (EU) No 619/2011 laying down the met hods of sampling and analysis for the official 
control of feed as regards presence of genetically  modified material for which an authorization  
procedure is pending or the authorization of which has expired has been adopted by the Commission 
on 24 June 2011.  
The EU imports significant quantities of commodities produced in third countries where GMO cultivation is widespread.  While these imported commodities are used both in the production of food 
and feed, the majority of the commodities likely to contain GMOs are destined for the feed sector 
thereby entailing a higher risk of trade disruption for that sector in cases where Member States apply 
different rules for official controls.  It appeared therefore appropriate to limit the scope of this 
Regulation to the feed sector which, in comparis on with other sectors related to the production of 
foodstuffs, has a higher likelihood for GM presence.  This being said, as outlined in the Regulation,  the Commission will monitor its application and its 
impact on the internal market as well as on f eed, livestock and other operators such as food 
operators, and, if necessary, bring forward proposals to review this Regulation. 
 
III. TRADE POLICIES AND PRACTICES BY MEASURE (1) 
MEASURES DIRECTLY AFFECTING IMPORTS  
(ix) Sanitary and phytosanitary standards (SPS) 
Paragraph 120, page 60 
 
Question 30 
Could the EU clarify what is meant by the followi ng:  "Member States may not legislate with respect 
to the cultivation of GMOs, only to their use"?  
Answer  
Canada seems to refer here to a sentence in paragraph 120 of the WTO Secretariat report.  The 
Commission notes that cultivation is precisely one of  the possible uses of GMOs.  Therefore, the 
sentence quoted may be misleading.  Regarding the proposed Regulation on cultivation, this 
Regulation provides that Member States may adopt me asures with respect to th e cultivation of GMOs 
in their territories, but not with respect to the im port into the EU of authorized GM seeds and plant 
propagating material, and the products of their har vest.  The proposal only aims at providing the 
possibility for Member States to ban the cultivation of GMOs (= only the act of cultivation).  The 
proposal does not allow Member States to prohibit the marketing and import of GM seeds and of the 
product of the harvest of the cultivation of GMOs (in another Member State or in a third country), 
which remains fully harmonized at EU level under EU legislation. 
 
Question 31 
Canada understands that the legal service of the Co uncil of Ministers has raised strong doubts that 
prohibitions or restrictions of GMO cultivation based  on grounds other than health or environmental 
would be found to be compatible with the EU's  WTO obligations.  Could the EU provide further 
detail on how it intends to ensure that any future measure related to the cultivation of GMOs is 
compliant with the EU's WTO obligations? 
 WT/TPR/M/248/Add.1 
Page 214  
 
 Answer  
The proposal requires the Member States that want to  use the possibility offered by the new Article 
introduced in Directive 2001/18/EC to ensure co mpatibility with the EU Treaties and the WTO 
Agreements.  These agreements do not prohibit WT O Members from taking legitimate public policy 
measures (including in policy areas different to heal th or the environment), provided they are applied 
in accordance with WTO obligations.  Furtherm ore, the proposed Regulation requires a Member 
State which wants to adopt a measure affecting the cultivation of GMOs to inform the Commission 
one month prior to the adoption of the act of the reasons why it considers the measure necessary.  The 
Commission has thus the possibility to react in case it appears that a measure is manifestly 
incompatible with the EU obligations related to  WTO and suggest the Member State concerned to 
review its draft 
 III. TRADE POLICIES AND PRACTISES BY MEASURE (2) 
MEASURES DIRECTLY AFFECTING EXPORTS  
(vi) Official Supports and Related Fiscal Measures 
Paragraph 135, page 63 
The Secretariat's Report notes that "Once in force,  the Modernized Customs Code will eliminate the 
drawback system.  The Commission indicates that there are no data on the value of repayments under the drawback system. In addition,  the Commission notes that drawback has not played an important 
role in the EU".  Question 32 
Could the EU please clarify whether the duty suspensi on system is being maintained and, if so, for 
what products?  
 
Answer  
The duty suspension system is bei ng maintained for any products. 
 Question 33  
Could the EU please provide information on the u sage of the duty suspension system in the EU? 
 
Answer  
The duty suspension system is used for both agricul tural and industrial goods.  With regard to some 
sensitive agricultural goods an examination of th e economic conditions is required because the 
inward processing procedure may be used only if the essential interests of EU producers are not 
adversely affected.  However, in most  of the cases the economic cond itions are deemed to be fulfilled 
so that the use of the inward processing procedu re is allowed for agricu ltural and industrial goods 
without such an examination  
III. TRADE POLICIES AND PRACTISES BY MEASURE 
(3) 
MEASURES AFFECTING PRODUCTION AND TRADE  
(iii) Subsidies and other government assistance 
(c) Assistance in response to the financial and economic crisis 
Paragraph 182, page 75 
The Secretariat's report notes that "Twelve Memb er States put in place schemes providing up to 
€15,000 for agricultural producers".  
Question  34 
Could the EU provide further details as to wh ich Member States provided such support for its 
agricultural producers and the total amount of support provided?  WT/TPR/M/248/Add.1 
Page 215 
 
 
  Answer  
Between November 2009 and December 2010, the Co mmission approved, under the Temporary 
Framework, aid schemes for limited amounts of ai d of up to €15.000 over 3 years to primary 
producers in 14 Member States.  These are:  Austria,  Belgium (Flanders), Bulgaria, Finland, France, 
Germany, Hungary, Italy, Lithuania, The Netherl ands, Poland, Slovakia, Slovenia, and the UK.  The  
14 schemes together total maximum aid of €1.21 billi on.  Data on how much aid has actually been 
granted over the full period is not yet available.  
 
Question  35 
Could the EU please describe the eligibility cr iteria for these schemes and which agricultural 
producers received this support? 
 
Answer  
All agricultural producers in a Member State w ith an aid scheme under the Temporary Framework 
were eligible to apply for aid un der the scheme if they fulfilled the elig ibility criteria.  The full set of 
eligibility criteria for the schemes are set out in the "Temporary framework for State aid measures to 
support access to finance in the current financia l and economic crisis" as amended.  
(http://ec.europa.eu/competition/state_aid/legislation/temporary.html).  III. TRADE POLICIES AND PRACTICES BY MEASURE (2) 
MEASURES AFFECTING PRODUCTION AND TRADE  
(iv) Government procurement 
Paragraph 188, page 77 
The Secretariat's Report states that, "all procurem ents carried out in the European Union above 
specified thresholds must comply with the require ments of the EU Directives on procurement, which 
are reflected in relevant legisl ation and regulations of the EU Member States.  In particular, 
procurement above the relevant thresholds must be advertised EU-wide and must follow uniform 
procedures.  Furthermore, given the EU's status  as a party to the WTO Agreement of Government 
Procurement (GPA), the Directives themselves in a ddition to the Member States' legislation must 
conform to the GPA".   
Question  36 
Given that the EU Directives use a definitional appr oach to identify the scope of entity coverage for 
the Directives, and that the associ ated illustrative lists are not updated on a regular basis, by what 
mechanism does each Member State inform th e Commission or other Member States on which 
specific entities are covered by the Directives? 
 
Answer  
The scope of Directives is indeed defined by defin itions.  The annexes of the Directives are indicative 
and non-exhaustive.  Some Member States have opted to  provide lists of operators, whereas other 
Member States have opted to provide the reference to the national legislation to which these 
contracting entities are subject.  The latter are most ly Member States, whose contracting entities in 
these sectors are local and would require a voluminous listing.  
Since the EU uses a definition based system, it does not need to "schedule" entities that are meant to 
follow the procurement rules. Scheduling of entiti es would necessarily lead to less coverage. As long 
as the entity in question falls under the definition of the Directives, the type of procurement is covered 
and the contract in question is above the threshold, the entity is obliged to follow the rules of the 
procurement Directives.  Failing this obligation woul d result in a violation of the directives.  The EU 
Treaty foresees a procedure for viol ation of the EU law (the infrin gement procedures).  An aggrieved 
bidder can seek remedy using the harmonized system of bid challenges.  WT/TPR/M/248/Add.1 
Page 216  
 
 The indicative lists of entities ha ve been prepared for the Public Procurement Package of 2004 (the 
Directive 2004/17/EC and the Directive 2004/18/EC ).  The Directives give the right to the 
Commission to amend the list of entities (Article 70 of the Directive 2004/17/EC and Article 79 of the 
Directive 2004/18/EC).  To this aim the Commission can demand the Member States to submit updated lists.  The indicative lists have been modified in 2008 by the Decision 2008/963.  
 
Question  37 
In regards to the illustrative lists of covered entities, how do Member States inform the Commission 
and other Member States regarding changes to names and/or responsibilities of covered entities? 
 
Answer  
Since the Directives are definition based and these de finitions have been correctly implemented in all 
Member States, there is no real need for info rmation on minor changes (such as name 
change/responsibilities).  The definitions give sufficient le gal certainty for all stakeholders.  In the EU 
context, we would have difficulties to imagine that a change of a name of an entity and/or 
responsibility would lead this entity to believe that  it does not need to apply procurement rules. 
Nevertheless, as explained in the answer to ques tion 36, the Commission can request from Member 
States an updated list of entities.  The requests of the Commission for updated li sts are indeed mainly 
driven by the international obligations of the EU , since the coverage of th e international agreements 
(such as the GPA) is based on scheduling of entities.  
 
III. TRADE POLICIES AND PRACTICES BY MEASURE 
(2) MEASURES AFFECTING PRODUCTION AND TRADE  
(iv) Government procurement 
Paragraph 191, page 78 
The Secretariat's report states that, "moreover, acco rding to the Commission, during the global crisis, 
no "buy local" requirement was imposed at any level through government procurement.  The 
Commission highlighted to interested parties some existing provisions of the EU procurement Directives.  For example, Directive 2004/18/EC allo ws recourse to accelerated procedures if justified 
on grounds of urgency".    
Question  38 
Can the EU clarify which article(s) of Directiv e 2004/18/EC the Commission is referring to in the 
statement above regarding accelerated procedures?  
 
Answer  
The Article 38 (8) of the public procurement Di rective 2004/18/EC allows recourse to accelerated 
procedures where justified on the grounds of ur gency.  The Commission recognized that the 
exceptional nature of the economic situation caused by  the global financial crisis can justify the use of 
the accelerated procedure on grounds of urgency.  
 
Question  39 
Other than the example provided regarding th e accelerated procedures under Directive 2004/18/EC, 
can the EU elaborate on which, other "existing prov isions of the EU procurement Directives" were 
highlighted to interested parties, and the associated reason(s)? 
 
The Secretariat's Report states that, "in Dece mber 2008, the Commission recognized that the 
exceptional nature of the global crisis could justify the use of this accelerated procedure, reducing the 
overall time limit of procurement from 87 days to 30 days.  Following this, the Commission set up a 
monitoring mechanism on the application of this option by Member States."  WT/TPR/M/248/Add.1 
Page 217 
 
 
  Answer  
The EU is not aware of any such provis ions in the EU procurement Directives.  
 Question  40 
Further to the monitoring mechanism set up by th e Commission on the application of this option by 
Member States, can the EU elaborate on its application in each of the Member States, including:  
1. The number and type of contracts awarded pursuant to this accelerated procedure in each 
Member State; 
2. How the contracting authorities in each Member State demonstrated the need for their use of 
the accelerated procedure; and, 
3. Whether the Commission's recognition of the jus tified use of this accelerated procedure based 
on the global crisis is still in effect today,  and if so an elaboration of the process and 
circumstances under which this Comm ission decision may be modified. 
 
Answer  
The EU has set up a monitoring mechanism of th e use of the accelerated procedure justified on 
grounds of urgency via the Advisory Committee for Public Contracts (composed of Member States). 
The Member States provide statistical information on  the contracts for which this procedure has been 
used.  The information includes an overview of th e contract values, types of contracts (works, 
services, supplies), and business sectors.  
The Member States that wish to keep using the te mporary anti-crisis measures can do so until the end 
of 2011.  
 III. TRADE POLICIES AND PRACTICES BY MEASURE (2) 
MEASURES AFFECTING PRODUCTION AND TRADE  
(iv) Government procurement 
Table III.10 (b), page 79 
Table III.10 of the Secretariat's report outlines the minimum public procurement thresholds for 2010 -
11.   
Question  41 
Footnote (b) provides that "contracts that are su bsidized at more than 50% by the contracting 
authorities involve either civil engineering to build  hospitals, facilities intended for sports, recreation 
and leisure, school and university buildings, and buildings used for administrative purposes or the services connected to the aforementioned types of proj ects."  Can the EU clarify what is meant by the 
category "contracts subsidized at more than 50% by the contracting authority"?  Would this subject a 
non-covered entity to EU public procur ement rules if a contract is subsidized at more than 50% by a 
contracting authority covered by the EU Directives? 
 
Answer  
This provision regulates a situation when an entity that is not a contracting authority within the 
meaning of the EU procurement law (for example a private hospital or sports club) obtains more than 
half of the funds needed for an execution of a proj ect listed above from public funds (as a grant). 
Despite the fact the entity in question is normally not  subject to public procurement rules, due to the 
high proportion of taxpayer's money involved in the project, this en tity must follow the rules of the 
procurement Directive.  
 
Question  42 
In regards to the second row of Table III.10, can the EU elaborate on the category "Other public 
sector contracting authorities", including (i) the t ypes of entities captured in this category with WT/TPR/M/248/Add.1 
Page 218  
 
 specific examples in certain Member States;  and (ii) whether, and if so how, these contracting 
authorities are subject to EU public procurement Directives 2004/17/EC and 2004/18/EC? 
 
Answer  
The term "other public sector contracting authorities"  refers to the entities cove red by Annex II of the 
Government Procurement Agreement (regional and local authorities, bodies governed by public law). 
In the EU, these contracting authorities a re covered by the Directive 2004/18/EC.  
 III. TRADE POLICIES AND PRACTICES BY MEASURE (2) 
MEASURES AFFECTING PRODUCTION AND TRADE  
(iv) Government procurement 
Paragraph 192, pages 78-79 
The Secretariat's Report states that, "in 2008, procurement published in the Official Journal 
represented between 1.2% and 9.6% of Member States' GDP, between 7.1% and 61.1% of total 
procurement (Table III.11).  The percentage vari es among EU Member States;  for example, it is 
comparatively low in Germany, while much higher in  Latvia, Bulgaria, and Estonia.  The authorities 
attribute these variations to the different structures of the public sector (and its spending power) in the 
respective Member State."  
 
Question  43 
Can the EU elaborate on the differences in the stru ctures of the public sector (and its spending power) 
among the Member States, and explain how these differences impact the percentage of total 
procurement published in the Official Journal?  
 
Answer  
Some Member States practice a centralised purchas ing policy.  A centralized procurement policy 
leads to contracts with a higher median value.  This translates to more above threshold procurement 
which is then recorded in the statistics.  
 III. TRADE POLICIES AND PRACTICES BY MEASURE (2) 
MEASURES AFFECTING PRODUCTION AND TRADE  
(iv) Government procurement 
Paragraph 193, page 80 
The Secretariat Report notes that, "although it is diffi cult to identify the exact nationality of successful 
suppliers/service providers, the Commission starte d to establish a methodology to monitor cross-
border procurement, including from non-EU origin."  Question  44 
Can the EU please elaborate on the methodology it u ses to determine the origin of suppliers/service 
providers, and what is considered "non-EU origin"? 
 
Answer  
As the Secretariat Report states, the EU has star ted to established a methodology to monitor cross-
border procurement.  The methodology is being deve loped for (i) the works on the evaluation of the 
performance of the 2004 Procurement Legislative Pa ckage (due in September 2011) and (ii) for the 
legislative initiative regarding the access of suppli ers from third countries to the EU procurement 
market (due by the end of 2011).  The EU will be only  able to share the details of this methodology by 
then.  
 WT/TPR/M/248/Add.1 
Page 219 
 
 
  III. TRADE POLICIES AND PRACTICES BY MEASURE 
(2) MEASURES AFFECTING PRODUCTION AND TRADE  
(iv) Government procurement 
Paragraph 197, page 81 
The Secretariat Report notes that, "the Reme dies Directive, Directive 2007/66/EC, which 
supplemented and amended the Directives 89/665/EC and 92/13/EC, introduced two features.  First, 
following an award decision for a public contract, c ontracting authorities must wait at least ten days 
before signing a contract.  This "standstill peri od" gives bidders time to examine the decision and 
decide whether to initiate a review procedure.  If a review procedure is initiated, the procurement 
process is automatically suspended until the review body reaches a decision.  Second, more stringent 
rules were stipulated against illegal direct award of public contracts. In both cases, national courts or 
review bodies may nullify signed contracts if these rules are not followed."  
Question  45 
Have the national courts or review bodies in any Member States nullified signed contracts since the 
implementation of the Remedies Directive?  If yes, please elaborate on these instances, including 
whether these were retroactive cancellations of all contractual obligations? 
 
Answer  
Contracts concluded in breach of the standstill period if combined with infringements of the 
provisions of the Directives 2004/17/EC and 2004/18/ EC to the extent that those infringements 
affected the chances of the bidd er applying for review to obtain th e contracts must be rendered 
ineffective.  Only in case of infringements of formal obligations, Member States may provide for 
alternative penalties.  Also in cases of illegal direct awards the contract must be rendered ineffective. 
As regards the illegal direct awards, the review body  may not consider the contract ineffective for 
overriding reasons of public interest (economic in terest directly linked to the contract does not 
constitute an overriding reason of public interest).  National laws of Member States provide for the 
retroactive cancellation of all contractual obligations or they limit the annulment only to those obligations that remain to be fulfilled. 
 
Question  46 
In each of the Member States, are the prescribed remedies provided through the courts, administrative tribunal or other mechanisms? 
 
Answer  
The Member States are free to choose the form of the remedy body, according to their legal traditions. 
Irrespective of the form chosen, the remedy body mu st fulfil the criteria laid out in the Remedies 
Directives; the body must be an independent court-like structure. 
 Question  47 
Given the indication that the procurement process is automatically suspended until the review body 
reaches a decision, can the EU indicate for each of the Member States the average length of a 
remedies investigation?  What, if any, time peri ods are required under national law (the remedies 
process)?  
 
Answer  
The Directive 2007/66/EC has been in application in Member States for 18 months (the transposition 
deadline was December 2009).  Therefore the EU do es not dispose with the information required. 
Should the EU proceed with an evaluation or amendm ent of this Directive, it would then collect and 
analyze such data.  
 WT/TPR/M/248/Add.1 
Page 220  
 
 Question  48 
While the paragraph above indicates that the procur ement process is automatically suspended until the 
review body reaches a decision, Article 2(3) of th e EU Remedies Directive provides:  "Except where 
provided for in paragraph 3 [of Article 2] and Artic le 1(5), review procedures need not necessarily 
have an automatic suspensive effect on the cont ract award procedures to which they relate." 
(emphasis added).  Can the EU please elaborate on the circumstances that would result in a review 
procedure not having a suspensive effect on the contract award procedures as well as whether there 
are any circumstances other than conclusion of the review procedures under which a contracting 
process that was suspended could be re-activated?  
 
Answer  
The provision of the Article 2(4) must be read in conjunction with the Article 2 (5) which stipulates 
that Member States may provide that the body responsible for review procedures may take into 
account the probable consequences of interim measures for all interests likely to be harmed, as well 
as the public interest, and may decide not to grant such measures when their negative consequences 
could exceed their benefits.  The provision of the Article 2(5) corresponds to the provision of the 
Article XX:7(a) of the GPA.  It shall be pointed out that the automatic suspension stipulated by the 
Directive goes beyond the obligations of the GPA ( both, the current and the provisionally agreed 
revised GPA).A suspended contracting process can only continue following the conclusion of the 
review procedure.   
 
Question  49 
The Secretariat Report notes that, "Member States had until December 2009 to bring their legislation 
into compliance with this Directive. By March 2 011, all Member States but one had transposed the 
Directive".   
Can the EU confirm which Member State has not transposed the Directive and whether this Member 
State has now transposed the Directive?  If not, what steps is the Commission taking to ensure 
transposition by this Member State? 
 
Answer  
The EU does not consider opportune to divulge the information which Member State did not yet 
transpose the Directive, as this may have an adverse e ffect on the infringement proceedings with that 
Member State.  The European Commission, in charge  of the infringement procedures, publishes press 
releases on individual infringement cases, once the procedure reaches the stage of reasoned opinion 
or the referral to court.  As regards publ ic procurement, see the following link:  
http://ec.europa.eu/internal_marke t/publicprocurement/index_en.htm 
 
III. TRADE POLICIES AND PRACTICES BY MEASURE (2) 
MEASURES AFFECTING PRODUCTION AND TRADE  
(iv) Government procurement 
Paragraph 204, page 83 
The Secretariat Report notes that "nonetheless, the contracting authorities may award contracts in lots with a view to accommodating social considerat ions, or promoting participation of SMEs in 
procurement, provided that the procurement requireme nt is not subdivided to avoid the application of 
the EU Directives".  
Question  50 
Can the EU explain how, using examples, Member St ates ensure compliance with the core principles 
of non-discrimination and transparency when subdividi ng contracts in lots in order to promote the WT/TPR/M/248/Add.1 
Page 221 
 
 
  participation of SMEs, and how it is ensured that contracts are not split into lots in order to avoid 
application of the EU Directives? 
 
Answer  
The EU contracting authorities are allowed award cont racts in lots, as long as this does not lead to 
avoiding the threshold of the EU Directives and the GPA. The blanket prohibition of the Directive 
catches any splitting which is not justified on obj ective grounds and is thus  solely designed to 
circumvent the rules laid down in the Directive.  Splitting up in lots obviously benefits to the 
participation of SMEs in the EU tender procedures.  The EU Directives do not contain any provision 
that would allow splitting of contracts in lots with  the view to accommodating social considerations. 
The EU is equipped with a specific tool (an electro nic platform in-built to OJ/TED) that allows for 
monitoring of the split ups.  The EU Treaty prov ides then for a procedu re to investigate potential 
infringements of the procurement rules and remedy them.  Additionally, the EU's harmonized system 
for bid challenges allows to the bidders to claim their rights.  
 
Question  51 
Can the EU indicate how SMEs are defined with in the EU and Member States (should a single 
definition not exist across all Member States)  for the purpose of public procurement?  
 
Answer  
The European Commission adopted on May 6 2003 a Recommendation 2003/361 regarding definition 
of SMEs.  
Enterprises qualify as micro, small and medium-sized enterprises (SMEs) if they  fulfil the criteria laid 
down in the Recommendation which are summarized in the table below.  In addition to the staff 
headcount ceiling, an enterprise qualifies as an SME if it meets either the turnover ceiling or the 
balance sheet ceiling, but not necessarily both. 
Enterprise category Headcount Turnover Balance sheet total 
medium-sized < 250 ≤ € 50 million ≤ € 43 million 
small < 50 ≤ € 10 million ≤ € 10 million 
micro < 10 ≤ € 2 million ≤ € 2 million 
This Recommendation concerns all Community polic ies applied within the Eu ropean Economic Area 
in favour of SMEs (Structural Funds, Framewo rk Programme for Research and Development) as well 
as State Aid, where SMEs can benefit from exempti on provisions and higher ai d ceilings (see General 
Block Exemption Regulation in the field of St ate Aid).  The Recommendation is addressed to the 
Member States, the European Investment Bank (EIB) and the European Investment Fund (EIF).  For more info: 
http://ec.europa.eu/enterprise/policies/sme/fa cts-figures-analysis/sme-definition /index_en.htm 
 
III. TRADE POLICIES AND PRACTICES BY MEASURE 
(2) 
MEASURES AFFECTING PRODUCTION AND TRADE  
(iv) Government procurement 
Paragraph 207, page 83 
The Secretariat Report notes that, "the 2004 Direc tives clarified how public procurement can include 
environmental considerations, while  national legislation in some Member States also defined national 
criteria and approaches to GPP.  Some have express ed the view that the EU procurement Directives 
lack flexibility, and tend to constrain Member Stat es' ability to achieve th eir social/environmental 
objectives through public procurement."   
 WT/TPR/M/248/Add.1 
Page 222  
 
 Question  52 
Could the EU please identify which Member States have defined national cr iteria and approaches to 
Green public procurement (GPP) and provide links to the relevant national legislation for GPP? 
 
Answer  
GPP is a voluntary instrument, which means that  individual Member States and public authorities can 
decide whether to implement it or not and to what extent. 
In its 2003 Communication on Integrated Product Policy (IPP), the European Commission 
encouraged Member States to draw up publicly av ailable National Action Plans (NAPs) for greening 
their public procurement.  
 
For most MS, NAPs contain targets or objectives  for contracting authorities or for specific product 
groups for the next year. While they  are genera lly not legally-binding, they contain a political 
impetus to the implementation of  green public  procurement policy and they contribute to raising 
awareness on this. 
 
Please find below the link to the European Commissi on website providing updated information on the 
different NAPs and their implementation by  Member States:  http://ec.europa.eu 
/environment/gpp/action_plan_en.htm. 
 
Question  53 
Given the view indicated above regarding the lack of flexibility in the EU procurement Directives in 
terms of social/environmental criteria, can the EU confirm how the Commission has responded to 
such views and whether the Commission intends to re view its Directives in response to such views, 
and if so how?  
 
Answer  
The EU Directives (2004/17/EC and 2004/18EC) alre ady provide contracting authorities with the 
possibility to take into account social or envi ronmental criteria. The European Commission has, 
however, undertaken a revision of those Directives.  
One of the objectives of the revision is to a llow contracting authorities to better use public 
procurement to support the objectives of the EU 2020 Strategy (encouraging greener, more innovative 
and more socially inclusive economic growth). The preparatory phase of the revision - public 
consultation (Green Paper) and ex-post evaluation of  the current Directives - has just finished.  The 
issue of the how to better underpin the above me ntioned societal objectives has been largely 
addressed by the Green Paper. The findings of th e evaluation and the responses to the Green Paper 
will feed the reflection leading to the preparation of the legislative proposal, which is scheduled to be 
adopted by the Commission before the end of 2011.  
 III. TRADE POLICIES AND PRACTISES BY MEASURE (3) 
MEASURES AFFECTING PRODUCTION AND TRADE  
(vi) Intellectual property rights 
Paragraph 230, page 89 
The Secretariat's Report states that "The EU has a regime of regional exhaus tion, under which parallel 
imports from third countries are not allowed, while parallel imports within the EU are permitted".   
 
Question  54 
Could the EU please indicate whether this practice app lies to patents? If so, does this allow persons to 
import a product not protected by patents from EU co untry A (in which a patent was not filed or was 
found invalid) into EU country B (whe re a patent is still in force)? If so, how are patentees protected 
in EU country B? WT/TPR/M/248/Add.1 
Page 223 
 
 
  Answer  
The European Court of Justice has held that the rules on free movement of goods within the European 
Union imply that the proprietor of an industrial property right protected by the national law of a member state can not rely on that law to prevent importation of a product wh ich has been lawfully 
marketed in another member state by the proprietor with his consent.  However, the principle of 
exhaustion does not imply that the patent can be in fringed in a Member State where protection is still  
effective, it only relates to the marketing of goods , under the condition that the goods were marketed 
by the patent holder or with his consent fo r the first time within the European Union. 
 
III. TRADE POLICIES AND PRACTISES BY MEASURE 
(3) 
MEASURES AFFECTING PRODUCTION AND TRADE  
(vi) Intellectual property rights 
 
(b) Industrial property 
Trade marks 
 
Paragraph 246, page 93 
The Secretariat Report states that "a link is estab lished through the concept of seniority, i.e., the 
possibility of claiming, in applying for the Communi ty trade mark, the seniority of the earlier trade 
mark in the member State in or for which it was re gistered, preserving prior rights even if the earlier 
trade mark is not renewed."   Question  55 
Are prior rights preserved only if the earlier mark in  the member State is registered, or could non-
registered prior rights in a trade-mark be preserved?  Answer  
The Community trade mark has been designed to complement national trade mark protection systems 
provided by EU Member States.  The concept of seniority represents one of the links between these 
two systems.  The proprietor of an earlier trade mark  registered in a Member State, who applies for 
an identical trade mark for registration as a Commu nity trade mark for identical goods or services, 
may claim for the Community trade mark the seniority  of the earlier trade mark in respect of the 
Member State in or for which it is registered.  Seni ority has the sole effect under the CTM Regulation 
that, where the proprietor of the Community trade mark surrenders the earlier registered trade mark 
or allows it to lapse, he is deemed to continue  to have the same rights as he would have had if the 
earlier trade mark had continued to be registered.   
However, the concept of seniority has to be cl early distinguished from the possibility to raise 
opposition against registration of a Community trade ma rk or to apply for a declaration of invalidity 
on the basis of existing prior rights under Artic les 8 and 53 of the Council Regulation (EC) 
No 207/2009 of 26 February 2009 on the Community trade mark (codified version). 
 WT/TPR/M/248/Add.1 
Page 224  
 
 III. TRADE POLICIES AND PRACTISES BY MEASURE 
(3) 
MEASURES AFFECTING PRODUCTION AND TRADE  
(vi) Intellectual property rights 
(b) Industrial property 
Geographical indications 
 
Paragraph 255, page 95 
The Secretariat Report states that, "the spirits re gister contains 330 names, of which, two third-
country name (Ron de Guatemala (Guatemala), and Pi sco (Peru)), although neither has GI status at 
present". 
 
Question  56 
Can the EU please indicate the status that these names have in the EU if they are not GIs? 
 
Answer  
The applications are still under examination in a ccordance with Regulation (EC) No 110/2008. The 
two names are made available to the public  under this status via "Europa-E.spirits" 
 
III. TRADE POLICIES AND PRACTISES BY MEASURE 
(3) MEASURES AFFECTING PRODUCTION AND TRADE  
(vi) Intellectual property rights 
(b) Industrial property 
Geographical indications 
 Paragraph 257, page 95 
The Secretariat Report states that, "Community trade marks do not serve to identify the quality of a product."  
 
Question  57 
The public will often associate a trade-mark with  quality.  Could the EU please comment on the 
statement contained in the Secretariat Report?  Answer  
Under the Community Trade Mark Regulation,  there is no product quality requirement for 
registration of a trade mark.  Whether or not c onsumers associate a trade mark with quality or added 
value depends on many factors including the intrinsi c quality of the product and the effectiveness of 
the marketing effort.  However, quality or other char acteristics of a product may constitute one of the 
requirements set by a collective body which owns a Community collective trade mark. 
 
III. TRADE POLICIES AND PRACTISES BY MEASURE 
(3) MEASURES AFFECTING PRODUCTION AND TRADE  
(vi) Intellectual property rights 
 (b) Industrial property 
 WT/TPR/M/248/Add.1 
Page 225 
 
 
  Geographical indications 
 
Paragraph 258, page 96 The Secretariat Report states that "Some Member States operate specific GI systems covering products that the EU system does not cover (such as handicrafts)".   
 
Question  58 
Is the EU considering to expand its current GI  regime to include non-agricultural products? 
 
Answer  
As regards the protection of GIs for non-agric ultural products, the European Commission announced 
in its Communication adopted on 24 May 2011 entitled "A Single Market for Intellectual Property 
Rights Boosting creativity and innovation to provid e economic growth, high quality jobs and first 
class products and services in Europe" that it is about  to launch a feasibility study on the issue of GIs 
protection for non-agricultural products in the inte rnal market.  The study will notably provide an 
analysis of existing legal frameworks in the Member  States, an in-depth assessment of stakeholders' 
problems and needs and the potential economic im pact of protection for non-agricultural GIs. 
Drawing on the results of this work, following  further reflection and comprehensive evidence 
gathering, the European Commission will decide on an appropriate way forward, including the 
possible creation of a new EU title for such protection. 
 
IV. DEVELOPMENTS IN SELECTED SECTORS (1) 
AGRICULTURE  
(ii) Agriculture policies 
Paragraph 10, page 105 
The Secretariat Report notes that twenty one different Common Market Organizations (CMO) were replaced by a single one covering all sectors under the Common Agricultural Policy.  
 
Question  59 
As regards the CMO for wine, could the EU describ e how this would affect the operation of the on-
going reforms in the wine sector?  Answer  
The CMO for wine was fully integrated in the Singl e CMO.  The on-going reforms in the wine sector 
are not affected.  IV. DEVELOPMENTS IN SELECTED SECTORS 
(1) 
AGRICULTURE  
(ii) Agriculture policies 
(a) Domestic support 
Internal market supports 
 Paragraph 23, page 107 
The Secretariat Report notes that market interventio n measures for wine are being phased out in line 
with the final stage of reform, which included a gr ubbing up scheme to remove up to 175,000 hectares 
from production.   
Question  60 
Could the EU please provide more details as to how many hectares were actually grubbed up; (b) 
which varieties of vines were replanted; and (c ) the relative percentage each represent in total? WT/TPR/M/248/Add.1 
Page 226  
 
 Answer  
The wine CMO reform adopted by the Council in 20 08 foresees a 3-year grubbing up scheme in order 
to reduced wine production through a voluntary gr ubbing up scheme (without subsequent replanting). 
For the first two years of this scheme implementation, 117 000 ha have been grubbed up.   
The Wine CMO reform also foresees a measure of  vineyards restructuring and reconversion within 
the "menu" of the national support programme.  This measure can include  support for grubbing up 
before re-plantation.  This measure aims to in crease the compe titiveness of wine producers.  The 
complete data for these grubbing up operations included in restructuring measure are not yet 
available.  The Commission has no information concerning the varieties replanted. 
 
Question  61 
Also, the Secretariat Report notes the end of restrictive planting rights from the start of 2016, but also 
2018 in some Member States. Could the EU give more details as to which Member States will be 
ending the restrictive planting rights from 2018? 
 
Answer  
Until now, the Commission has not received any in formation concerning the Member States which 
intend to continue this scheme after 2015. 
 
IV. DEVELOPMENTS IN SELECTED SECTORS 
(1) AGRICULTURE  
(ii) Agriculture policies 
(b) Market access 
Tariffs 
 
Paragraph 32, page 109 The Secretariat's report notes that with regards to the EU's MFN tariffs on cereals, "The resulting duty 
has been set at zero for:  durum wheat and high qu ality soft wheat since 1 July 2010; maize since 
17 August 2010; and sorghum and rye since 19 October 2010".  
Question  62 
For each of the above products, can the EU provide  the applicable duties prior to the dates cited 
above, as well as the time period for which they were applicable? 
Answer  
The duties were the result of the application of Hea dnote 6 in the EU Schedule reflecting EU cereals 
bindings. At the particular moment of time cite d in the WTO Secretariat' s report the resulting duties 
were 0.  
IV. DEVELOPMENTS IN SELECTED SECTORS 
(1) 
AGRICULTURE  
(ii) Agriculture policies 
(b) Market access 
Tariffs quotas 
 Paragraphs 34-36, page 110 
The Secretariat Report mentions that the EU no tified 114 separate tariff quotas in the calendar year 
2009, which included several cases where two or mo re quotas covered the same or similar products. 
The Report goes on to note that this is further co mplicated by the method used by the EU to take WT/TPR/M/248/Add.1 
Page 227 
 
 
  account of its commitments towards acceding countries.  According to the Report, the methods used to 
administer and allocate tariff quotas vary widely, and so does the fill rat es, where 39 tariff quotas 
were completely used while 20 had no imports at all.  
Question  63 
Could the EU elaborate on how it intends to bri ng more transparency and predictability in its 
administration of tariff quotas? 
 
Answer  
Information on agricultural import tariff quotas m anaged on a "first come first served" basis is 
available in the "Quota" database of the Eur opean Commission's Directorate General for Taxation 
and Customs Union on Europa website.  The Comm ission introduced, since 2007, a new IT system 
(AMIS-Quota) designed for the management of agr icultural import tariff quotas via import licences. 
This system reduced significantly the administr ative burden related to quota management and 
increased transparency.  Allocation coefficients are published regularly in the Official Journal of the 
EU.  Also, quota balances are made available und er the CIRCA sites of the respective market sectors. 
 IV. DEVELOPMENTS IN SELECTED SECTORS (1) 
AGRICULTURE  
(ii) Agriculture policies 
(c) Export subsidies 
Paragraph 38, page 110 
The Secretariat's report notes that, in the EU "the amount of export subsidy varies from one product to 
another and can vary from one market to another."    
Question  64 
Could the EU please clarify how export subsidie s vary between destinations, and how the EU 
administers this to ensure that the correct amount of export subsidy is refunded, including for processed/incorporated products?     
Answer  
Export subsidies are never an automatic entitleme nt for exporters and their amounts vary according 
to the situation and the evolution of both the Union and the world markets.  They may also vary 
according to the destinations, for market reasons or  in case of an international agreement.  As far as 
administering is concerned, and w ithout prejudice of some exceptions, entitlement to the subsidy is 
acquired on leaving the customs territory of the Un ion when a single refund rate applies for all third 
countries, and on proof of importation into a speci fic third country, when a differentiated subsidy 
applies for that third country. 
 IV. DEVELOPMENTS IN SELECTED SECTORS (2) 
TRADE IN SERVICES  
(iii) Transport 
Paragraph 75, page 125 
Question  65 
Could the EU please clarify why there has not been further market opening in the marine transport 
industry?  What has prevented this from occurring and what is the EU doing to open the market in this 
mode?  WT/TPR/M/248/Add.1 
Page 228  
 
 Answer  
The EU is working with different means to furt her promote liberalisation of maritime transport 
services.  The EU is currently negotiating Free Trade Agreements with a number of countries 
(including Canada and Singapore) t hat will comprise provisions on international maritime transport 
services, including the right to establishment.  Furth ermore, the EU is actively participating in the 
negotiations in the DDA WTO with the purpos e of concluding a multilateral agreement on 
liberalization of maritime transport services.  IV. DEVELOPMENTS IN SELECTED SECTORS (2) 
TRADE IN SERVICES  
(iii) Transport 
(c) Maritime transport 
Paragraphs 86-89, pages 128-129 
Question  66 
Within the context of the Maritime transport sectio n of the Secretariat's report could the EU please 
clarify whether the "Community guidelines on State ai d to maritime transport" are still in effect and 
are there any plans for expansion, renewing, modifications, etc.?   
Answer  
The Community guidelines on State aid to maritim e transport were adopted in 2004 and provide for 
their review within 7 years from thei r entry into force, i.e. in 2011.  In this context, the Guidelines do 
not have an expiry date and continue to be in force.  
 The European Commission is currently analysing its decisions adopted since the entry into force of 
the Guidelines and the Commissioner responsible for co mpetition will then decide on the follow up of 
the review.  For the time being, no decision has be en taken whether the Guid elines should remain in 
their current form or be modified.  
Question  67 
Could the EU please describe the cabotage regimes in place in EU Member States? 
 
Answer  
The rules regarding access to maritime cabotage in  EU Member States have been laid down by  
Council Regulation (EEC) No 3577/92 of 7 Decemb er 1992 applying the principle of freedom to 
provide services to maritime transport within  Member States (maritime cabotage), OJ L 364, 
12.12.1992.  This regulation opened domestic ma ritime transport markets to all EU ship-owners 
operating vessels registered in and flying the flag of a Member State, provided that those vessels 
comply with all conditions for carrying out cabotage in that Member State 
 
Question  68 
If cabotage rules are harmonized (for the most part  among EU Member States) what rules apply to 
foreign vessels?  Are there quotas on vessel types, numb er of voyages, amount of time, etc.?  What is 
the foreign level of participation in EU cabotage?  Answer  
As a matter of principle Regulation 3577/92 requires that in order to benefit from the freedom to 
provide cabotage services the vessel has to be reg istered and fly the flag of a Member State.  
 
In order to allow non-EU and non-EEA flagged vess els to provide maritime cabotage several Member 
States have opened their markets more than the Regul ation requires, whether (i) erga omnes (e.g. UK,  WT/TPR/M/248/Add.1 
Page 229 
 
 
  Denmark) allowing any vessel to provide cabotage, irrespec tive of the flag of its registration;  (ii) by 
means of international agreements;  (iii) or  by means of individual authorizations.  
 As far as individual authorizations are concerned , they are granted for a limited period of time when 
no other EEA-registered vessels are available.  The systems of waivers are not harmonized at EU 
level and particular conditions might differ from one  Member State to another.  Since there is no 
obligation of notifying those systems, the Commission is not aware of details of those authorizations 
regarding vessel types, number of voyages or amount of time, as requested by Canada. 
 The table below presents the percentage of foreign vessels involved in cabota ge in five EU Member 
States in years 2000-2005. 
 
Percentage of fleet participating in cabotage traffic  
 National flag Other EEA Other non-EEA 
Countries 2000 2003 2005 2000 2003 2005 2000 2003 2005 
Finland  
Mainland freight 78% 
 73% 48% 19% 21% 38% 3% 6% 14% 
Island freight 99% 99% 99% 1% 1% 1% 0% 0% 0% 
Mainland passengers 100% 100% 100% 0% 0% 0% 0% 0% 0% 
Island passengers 94% 96% 96% 6% 4% 4% 0% 0% 0% 
Sweden  
Mainland freight - - 43% - - 40% - - 17% 
Island freight - - 100% - - 0% - - 0% 
Mainland passengers - - 0% - - 0% - - 0% 
Island passengers - - 100% - - 0% - - 0% 
United Kingdom  
Freight 15% 14% 13% 3
73
73
44
848
% 53
% 
Passengers 19% 19% 25% 1
92
51
96
256
% 56
% 
Italy  
Mainland freight 79% 73% 80% 19% 27% 20% 2% 0% 0% 
Island freight 93% 89% 86% 5% 11% 14% 2% 0% 0% 
Mainland passengers 53% 95% 94% 9% 5% 6% 38% 0% 0% 
Island passengers 100% 100% 99% 0% 0% 1% 0% 0% 0% 
(cont'd)WT/TPR/M/248/Add.1 
Page 230  
 
 Percentage of fleet participating in cabotage traffic  
 National flag Other EEA Other non-EEA 
Countries 2000 2003 2005 2000 2003 2005 2000 2003 2005 
Portugal  
Mainland freight 79% 77% 64% 6% 11% 28% 15% 12% 8% 
Island freight 77% 76% 65% 15% 15% 27% 9% 8% 8% 
Mainland passengers 0% 0% 0% 0% 0% 0% 0% 0% 0% 
Island passengers 94% 96% 95% 0% 0% 0% 6% 4% 5% 
- Non available. 
Source:  ECORYS. 
 
Question  69 
Could the EU please indicate what specific restrictions apply to non-EU Member State ship owners/operators who wish to operate in EU wate rs (e.g. by vessel type, activity and any ownership 
restrictions)? 
 
Answer  
Regulation 3577/92 enumerates am ongst its beneficiaries only EU ship-owners. Article 2.2 of the 
Regulation defines EU ship-owners as:  (i) national s of a Member State established in a Member 
State in accordance with the legislation of that Member State and pursuing shipping activities;  (ii) 
shipping companies established in accordance with the legislation of a Member State and whose principal place of business is situated, and effecti ve control exercised, in a Member State;  or (iii) 
nationals of a Member State established outside the Community or shipping companies established outside the Community and controlled by nationals of a Member State, if their ships are registered in 
and fly the flag of a Member State in accordance with its legislation.  
 Since Regulation 3577/92 lays down only the minimum requirements regarding the opening of cabotage markets, Member States may decide to op en their domestic markets more fully than the 
Regulation requires. See also replies to questions 68 and 72.  
 
Question  70 
Could the EU please explain how cabotage rules a pply to energy and resource extraction from the 
continental shelf in EU Member States?  Answer  
Regulation 3577/92 applies to maritime trans port services within a Member State understood as 
services normally provided for remuneration; tho se services include amongst others off-shore supply 
services, i.e. the carriage of passengers or goods by sea between any port in a Member State and installations or structures situated on the con tinental shelf of that Member State provided for 
remuneration- see Article 2.1(b) of Regulation.  Therefore, the cabotage rules would apply to the 
extent the transport operations, as defined above, ta ke place within the Me mber State in question 
 Question  71 
Can the EU please explain the transitional arrange ments for France, Italy, Portugal, Spain and 
Greece? Why do they exist and for how long? 
 WT/TPR/M/248/Add.1 
Page 231 
 
 
  Answer  
In order to take into account the nature of certain specific services and the extent of the effort that 
certain economies in the EU showing differences in  development would have to sustain, the EU 
legislator decided that the implementation of li beralization of maritime cabotage should be gradual 
and not necessarily provided for in a uniform wa y for all services concerned .  Therefore, in the 
case of France, Italy, Greece, Portugal and Sp ain mainland cabotage was gradually liberalized 
according to a specific timetable for each type  of transport service (Article 6 of Regulation 
3577/92). All those derogations ended on 1 January 1999 .  In case of Greece, for reasons of socio-
economic cohesion the derogation for sche duled passenger and ferry services, and services 
involving vessels of less than 6 50 gt lasted until 2004.   
 
Question  72 
Can the EU please indicate whether there are there a ny costs to foreign ship owners/operators who 
wish to operate in EU cabotage (e.g. licenses, inspections, ownership, residency, taxes/duties, and 
other costs)? 
 
Answer  
As explained above in reply to question 69, as a matter of principle non-EEA shipowning companies 
are not amongst the beneficiaries of Regulation 3577/92.  Should a non-EEA shipowner wish to provide cabotage he would be required to lawfully  establish himself according to the legislation of 
any Member State and to situate his principal place of business and exercise effective control over his 
company in a Member State (i.e. effective control me ans in this context that the major decisions are 
taken and the day-to day management performed from the EU).  Question  73 
Can the EU please indicate what restrictions (e.g. na tionality, wages, certification) exist with respect 
to the nationality of seafarers used on vessels ope rating in EU cabotage for EU Member and non-
Member States?  
Answer  
Regulation No 3577/92 allows that "host" Member State may impose its own manning rules on ships 
carrying cabotage with, to and between islands (Ar ticle 3.2 of Regulation 3577/95). "Host" Member 
State may also decide the manning rules applicable to ships smaller than 650 gt.  Five Member States 
have chosen to avail themselves of these provisi ons:  France, Italy, Spain, Portugal and Greece.  The 
rules on manning can include the required proportion of EEA nationals on board ships, social insurance coverage in the EU, rules on safety and training and minimum wage rules. The table below is entirely based on information pr ovided to the Commission by Member States in the 
framework of preparation of a periodic re port on the implementation of maritime cabotage. WT/TPR/M/248/Add.1 
Page 232  
 
 Country/Text EEA nationals 
(proportion) Social security Training Working conditions 
minimum crew EU/EEA 
nationals Third country 
nationals Working 
hours Wage 
Spain  At least 50%  of the 
crew as well as the 
captain and the 
first officer EU/EEA.  Coverage in one 
of the EU/EEA 
States. (EEC 
Regulation No 1408/1971). Coverage of the 
same level as in 
Spain for 
accidents, illness, 
maternity, old 
age, invalidity and 
unemployment. STCW Same as on 
board 
national 
vessels performing a 
comparable 
service. At least the 
minimum wage 
applicable in 
Spain. 
Order of 22/07/1999 Application of the 
SOLAS 
Convention. 
Italy  100% EU/EEA 
(exceptions 
provided for less 
qualified crew members).  Coverage in one 
of the EU/EEA 
States. - STCW Same as on 
board 
national 
vessels performing a 
comparable 
service. At least the 
minimum wage 
fixed by law 
and collective agreements. 
Decree No 529 
of 25/11/1999  For national 
vessels, Law of 
16/03/2001 N° 18 changed the 
requirement that the 
crew be Italian citizens with the 
exception of cases 
of necessity. Article 5 of Law 88/2001 
allows for crew 
outside the Community to 
board Italian 
vessels subject to trade union agreements. 
Circular of 25/11/1999 
Law of 
16/03/2001 N° 88 Application of the 
SOLAS 
Convention. 
France  100% EU/EEA Coverage in one 
of the EU/EEA 
States - STCW  Same as on 
board 
national 
vessels performing a 
comparable 
service. At least the 
growth-linked 
guaranteed 
minimum wage (maritime 
SMIC). 
Decree No 99-
195 of 
16/03/1999 Application of the 
SOLAS Convention 
Greece  100% EU/EEA  for 
merchant ships carrying out island 
cabotage, waivers 
possible where EU/EEA seamen 
not available.  - - STCW The working 
time of seafarers is 
regulated in 
accordance with 
Directive 
1999/63 At least the 
minimum wage fixed by law 
and collective 
agreements 
(cont'd) WT/TPR/M/248/Add.1 
Page 233 
 
 
  Country/Text EEA nationals 
(proportion) Social security Training Working conditions 
minimum crew EU/EEA 
nationals Third country 
nationals Working 
hours Wage 
Portugal  Captain and 50%  
of the crew must be 
from EU/ EEA  or 
from countries with 
Portuguese as its official language, waivers possible 
where such seamen 
not available.  - - STCW - At least the 
minimum wage applicable in 
Portugal and 
the applicable effective social and fiscal 
security regime 
of the flag State for its 
nationals. 
Decree Law 7/2006 Host State rule only 
applicable to the 
regular transport services of 
containerised and 
solid general cargo between mainland 
and the Islands of 
Madeira and Açores. 
 
Question  74 
Can the EU please describe the income and corpor ate tax incentives offered to EU Member State 
seafarers and ship owners/operators who provide ca botage transportation services and for those that 
are in international service?  Why is there a difference? 
 
Answer  
The Community guidelines on State aid to maritime transport (OJ C 13, of 17. 01.2004, p.3) allow, 
under certain conditions, for different types of fiscal measures in favour of shipowners and seafarers. 
On the one hand, EU Member States are allowed to  implement tonnage tax schemes which reduce 
significantly the corporate taxation due by shi pping companies and to apply reduced rates of 
contributions for the social protection of EU seafa rers employed on board EU registered ships.  On 
the other hand, Member States can also apply redu ced rates of income ta x for EU seafarers.  
 It should be noted that the measures described above apply to maritime transport.  Thus, there is no 
difference in treatment of companies and seafarers in volved in cabotage transportation services and 
those that are in international maritime services.  
Question  75 
Can the EU please describe shipbuilding and repair funding/incentive programs to EU Member States 
for vessels that provide cabotage transportation services and for those that are in international service. 
Why is there a difference? 
 
Answer  
The Framework on State aid to shipbuilding (OJ C 317, of 30.12.2003) provides the rules under 
which incentives can be granted for the building, rep air or conversion of ships.  These rules include 
incentives for research, development and innovation, as well as incentives for the closure of non-
economically viable shipyards and for modernisation of shipyards located in less developed regions 
of the EU.    It should be noted that the me asures described above apply to the building, repair or conversion of 
self-propelled sea-going commercial vessels, irrespec tive of whether they are used for cabotage 
transportation services or inter national maritime services. 
 WT/TPR/M/248/Add.1 
Page 234  
 
 PAKISTAN 
 
Question 1 
(a) The EU is developing a comprehensive Eur opean International Inv estment Policy seeking for 
best available standards of protection for all European  investors. EU is request  to provide some details 
about this initiative.  
(b) Presently, each Member country of the EU ha s bilateral investment treaties with various 
countries, which are sovereign agreements.  Afte r instituting EU-wide unified investment regime, 
whether individual bilateral investment treaties woul d become infrastructous, EU may like to clarify.  
 
Answer  
(a) After the entry into force of  the Lisbon Treaty, foreign direct investment became part of the 
EU's common commercial policy (Article 207 TFEU ). In July 2007, the European Commission 
issued its Communication "towards a comp rehensive European international investment 
policy", presenting its views on how this new competence should be exercised by the Union.  
The Communication indeed states, inter alia, t hat the Union's future action in the field of 
investment protection should be inspired and guided  by the best available standards, so as to 
offer a level playing field of a hi gh quality to all EU investors.  
(b) In accordance with the provisions of the proposed Regulation establishing transitional 
arrangements for bilateral investment agreemen ts between Member States and third countries, 
can and will be maintained in force, in order to ensure the necessary level of  protection for 
investors.  It is however a long term objecti ve of the EU's comprehensive investment 
policy that such agreements are replaced by  agreements concluded at EU level.  The 
aim is to achieve a situation where investo rs from both EU and from third countries will 
not need to rely on BITs concl uded by one or the other Member State, but enjoy an effective and 
comprehensive EU-wide investment protection.  Since the proposed Regulation is still under 
discussion between relevant EU institutions, no furthe r information is available at this stage.   
 
Question 2: 
In its report, the EU has mentioned in paragraph 63  that "failure to conclude the Doha Round would 
on the other hand be significantly detrimental to th e current global economic uncertainty and could 
challenge the credibility of multilateral trading system".   EU is requested to explain that whether the 
WTO is synonymous to the Doha Round. 
 
Answer  
The EU does not consider the WTO to be synonym ous to the Doha Round; the functions of the 
Organization obviously go beyond the negotiating ro unds and comprise a number of important areas 
of activity.  However, in our view continued st alemate in the WTO's core  legislative pillar will 
inevitably have an impact on the other pillars of the Organization, and in general on its effectiveness 
and legitimacy as the guarantor of open markets. 
 
Question 3 
The Secretariat Report notes that the EU's compe tition policy also covers state aid, which, by 
favouring certain firms over their competitors, may di stort competition. In what manner does the EU 
plan to address this problem?  
 
Answer  
The EU has been operating a system of State aid cont rol over the last 50 years.  The Treaty of Rome 
(1958) entrusted the European Commission with the task of controlling State aid.  All aid must be notified to the Commission prior to its award and c annot be put into effect until it is approved. For 
smaller amounts of aid the Commission has spelt out very clear and straight forward conditions 
under which aid can be granted by the Member States without prior approval (the so-called WT/TPR/M/248/Add.1 
Page 235 
 
 
  exemption regulations).  For larger amounts of ai d and more complex cases, the Commission must 
approve the aid individually.  The European Commissi on has spelt out the criteria used to carry out 
its assessment of aid in a series of guidelines.   The rules are therefore transparent and apply to 
everybody regardless of nationality.  The aim of such a system is to ensure that compe tition is not distorted (government interventions can 
distort competition as much as certain behaviours by  undertakings) and ensure a level playing field in 
the internal market.  For more  information, please see: http://ec.europa.eu/competition 
/state_aid/overview/index_en.html  Question 4 
The Secretariat Report notes that measures taken by a number of the EU Member states during global 
financial crisis have limited the application of  competition policy in the financial services sector, 
adding that these measures may perpetuate rather than  relieve the underlying s ources of instability, or 
have other undesirable effects, further arguing that  the health of financial and other markets is 
unlikely to be well served by the suspension, in tim es of economic distress, of basic rules to prevent 
anti-competitive practices.  The Secretariat Report al so states that the Comm ission agrees with these 
comments.  Could the EU explain what pro-competitive measures are being taken to mitigate the effect of undesirable effects? 
 
Answer  
It is very important to clarify that the Commission agreed to the principle stated in the report that 
suspending basic rules to prevent anticompetitive pr actices in times of economic distress would badly 
serve the health of financial ma rkets.  The Commission therefore did not suspend the application of 
the competition rules, in particular of the State ai d rules, during the financial and economic crisis.  
On the contrary, the Commission has repeatedly i ndicated the importance of applying competition 
rules during a crisis period to avoid a negative impact on the internal market and subsidy races 
between Member States.  
On this basis and in reply to th e crisis, the Commi ssion provided Member States with new State aid 
possibilities targeted to the specific  needs of the market and aimed at facilitating companies' access to 
finance and investment means.  However, these measures have an exceptional nature and, therefore, 
they are limited in time.  As to Antitrust, the Commission remains vigilant in pursuing competition 
infringements with fines that are sufficient to det er anti-competitive behaviour.  Also with regard to 
mergers, the Commission mainta ins enforcement under merger control as evidenced by the 
BNPP/Fortis banking merger case wh ere remedies were required although the merger took place at a 
time when the financial crisis was at its peak.  Question 5 
During the period between October 2008 and mid- January 2011, the EU notified 146 technical 
regulations and conformity assessment procedures,  along with 140 by individual Member states. 
Compliance with such a high number of new technical regulations and conformity assistance procedures, which also apply to products of expor t interests to developing countries, add significant 
compliance burden and costs to the developing coun tries which put non-EC manufacturers, especially 
SMEs, at a disadvantage vis-à-vis EC manufacturers.  Could EU explain in what manner the 
difficulties in this respect experienced by exporters  of the developing countries and least developed 
countries can be addressed? 
 
Answer  
The EU fails to see the link between the number of notifications a WTO Member is carrying out and 
the fact that the proposed technical regulations  and conformity assessment procedures would "add 
significant compliance burden and costs to d eveloping countries and put non-EU manufactures, 
especially SMEs at a disadvantage vis-à-vis EU  manufacturers."  First, the impact of a notified 
measure can only be assessed with regard to its  specific content. For instance, certain EU 
notifications are in fact amendments of existing le gislation with the aim of simplifying the regulatory WT/TPR/M/248/Add.1 
Page 236  
 
 framework and/or updating it to technical pr ogress rather than introducing genuinely new 
requirements.  Second, the number of EU and Memb er State notifications reflects the full commitment 
of the EU and its Member States to the transparen cy obligations arising from the TBT Agreement.  
Third, EU and Member State legislation is equa lly applicable to domestic  and imported products as 
well as to domestic and foreign suppliers. Fourth, special  attention is paid to the needs of SMEs in the 
development of EU policies and regulations and a spec ific "SME test" is integral part of the impact 
assessments carried out at EU level (for  additional information, please see at:  
http://ec.europa.eu/enterprise/policies/sme/sma ll-business-act/think-small-first/index_en.htm). 
Finally, the EU provides extensive support and te chnical assistance to developing countries, with 
particular attention to the needs of their SMEs.  
 
Question 6 
EU has around 11% non-ad valorem tariff lines, which continue to afford higher protection than ad 
valorem rates, average AVE of non-ad valorem tariff  rates being 24.7%, compared with 4.6% for ad 
valorem duties.  Does EU envisage reducing the number of non-ad valorem tariffs and in what 
timeframe? 
 
Answer  
The nature of an import duty should not be confused w ith the level of protection it provides.  Pakistan 
would note that the calculation of an average dut y depends on the methodology used to calculate ad 
valorem equivalents (AVEs) of non- ad valorem duties. Any calculation of AVEs has shortcomings as 
the result can be influenced by several elements, including:  the base period and partners chosen;  
commodity prices;  exchange rates;  shocks in spec ific markets;  treatment of mixed tariffs and tariff 
lines for which trade data are not available;  and th e extent to which preferential trade is included in 
the unit value calculation.  
Question 7 EU brought change to its applied ta riffs on wheat according to the fluctuations in the world prices, it 
was brought down to zero than raised again, the quota  was also temporarily suspended.  Such short 
term measures of fluctuating tariffs and quota su spensions as well as export ban by certain other 
members could generate price fluctuation in the ce real market.  Is EU planning to have a more 
comprehensive approach on tariff reduction and removal of quota system especially on cereals to 
ensure predictability in the cereal market.  
 
Answer  
The EU tariff on cereals is the result of the applic ation of Headnote 6 in the EU Schedule and reflects 
EU cereals bindings. In view of the modest leve l of reductions in question, the impact of these 
measures on trade and price volatility can be considered very limited. 
 Question 8 
Reference para 34-36:  EU tariff quota administration system follows different methods including first 
come first served, historical importers, and licenses on demand , the recent notification showed that only 39 quotas were filled and 20 had no imports at all.  EU is requ ested to reflect on this issue. 
 Answer  
In its report, the WTO Secretariat argues that th e small volume of some TRQs may render them not 
"commercially meaningful".  The EU would note that in fact the three quotas referred to by the WTO 
Secretariat have been filled at 100% (see last notifica tion), which would seem to be in contradiction 
with the WTO Secretariat's argumen t.  Conversely, the fact that a given quota is not completely filled 
in a given period does not necessarily mean that it is not commercially meaningful. 
 WT/TPR/M/248/Add.1 
Page 237 
 
 
  TURKEY I 
 
Report by the Secretariat (WT/TPR/S/248)  
 
II. TRADE POLICY REGIME 
Question 1 
Page 21, para. 24 
The Secretariat's report mentions that the EU was preparing a proposal to amend its GSP regime. 
Could the EU explain the content and basic principles of this proposal?  
 
Answer  
The Commission's proposal adapts the EU GSP sch eme to the changes that have occurred in the 
global landscape in order to address better and more  efficiently the trade, financial and development 
needs of developing countries in line with the Enabling Clause. 
The main aim of the proposal for the new scheme of generalised tariff preferences is to focus 
preferential treatment on countries most in need.  Thus, preferences will be concentrated on Least-
Developed Countries (LDCs) and other low income  countries. More advanced economies will have 
their previous GSP preferences deferred. However, no developing country is excluded from th e GSP. Developing countries will be either a 
beneficiary or eligible to be a beneficiary.  More advanced economies will again receive preferences 
should there be a change in their trade, financial  and development needs as articulated through 
objective, transparent and widely established criteria.  
The proposal also aims to promote the core principles of sustainable development and good 
governance by reinforcing and improving the special incentive arrangement known as GSP+ in several ways.  This regime off ers additional tariff reductions to support vulnerable developing 
countries in the implementation of international c onventions in the areas of human and labour rights,  
sustainable development and good governance.  The pr oposal relaxes the economic criteria necessary 
to become eligible for GSP+, thus  allowing more countries to apply. 
In the third place, in order to ensure that preferences are indeed used , the system becomes more 
stable, transparent and predictable for third count ries, and economic operators.  For example, the 
duration of the GSP scheme will be open-ended, ra ther than limited to 3 years as is the case 
currently. 
The proposal will be the starting point for discussi on between the EU's two co-legislators: Council 
and European Parliament.    Question 2 Page 25, para. 38 
Could the EU explain the main elements of the dispute settlement mechanisms established with 
Tunisia, Lebanon, Egypt and Morocco? 
 
Answer  
The Euro-Mediterranean Association Agreements cont ain only a short article on dispute settlement, 
(i.e. the parties try to resolve the dispute in the A ssociation Council) or rely on arbitration provisions 
(they simply say "each party shall appoint an arbitrator"). 
The EU and Euromed countries negotiated Protocols to  strengthen the provisions on bilateral dispute 
settlement, using the WTO Dispute Settlement Un derstanding as a model. Negotiations have been 
concluded with Egypt, Jordan, Lebanon, Morocco  and Tunisia.  These agreements set out detailed 
rules on consultations, mediation, selection of panellists, arbitration, review of compliance and 
sanctions, plus rules of procedure (who serves the documents to whom, when, where, etc.) and an 
ethical code of conduct for arbitrators.   WT/TPR/M/248/Add.1 
Page 238  
 
 III. TRADE POLICIES AND PRACTICES BY MEASURE 
(1) 
MEASURE DIRECTLY AFFECTING IMPORTS  
(iii) Rules of Origins, 
Page 32, para. 19 
Question  3 
Could the EU provide status update on new proposal for a scheme of origin marking?  
 
Answer  
The Commission put forward its proposal for a regula tion on the indication of the country of origin 
on 16 December 2005. Following the entry into force of the Lisbon Treaty, the European Parliament 
became co-legislator on this proposal, which is to  be adopted according to the ordinary legislative 
procedure.  Following the adoption of the Resolution of the European Parliament in October 2010, the discussions are going on in the Council, who is not  legally constrained by  any time-limit at this 
stage of the procedure.  
Question 4 Could the EU clarify the new rules of origin as applied in its GSP scheme?  
 
Answer  
We refer to 2 documents previously distributed to WTO Members that explain extensively the rules in 
the GSP scheme:  
1. the EU notification to WTO Committee on Rules of Origin on new rules of origin applicable 
within the framework of the Eu ropean Union's Generalised Syst em of Preferences (GSP) (WTO 
document G/RO/N/69)  2. the EU notification to WTO Committee on Trade and Development on new rules of origin 
applicable within the framework of the European Un ion's Generalised System  of Preferences (GSP) 
(WTO document WT/COMTD/N/4/Add.5). 
 (iii) Subsidies and other governmental assistance 
(c) Assistance in response to the financial and economic crisis 
Question 5 
Page 76, para.185 
Could the EU provide an update on the current stat us of the support schemes provided to sectors like 
construction, tourism and t ourism as mentioned in the Secretariat's report?  
 
Answer  
The Commission always favours a multisectorial approach when assessing aid. Aid should in 
principle apply across all sectors.  Following this general principle, assistance provided under the 
temporary framework was not sector specific.  Thus, there are no consolidated data on the volume of 
aid under the temporary framework di saggregated by economic sector.   
The WTO report refers to support under the Eur opean Economic Recovery Plan, which is broader 
than the temporary framework for State aid and includ es a wide array of measures many of which do 
not entail State aid.  
The data mentioned in the WTO report stems from the following study: 
http://ec.europa.eu/economy_finance/public ations/european_economy/2009/pdf/ee11_2009_en.pdf. 
There is no more updated data. 
 WT/TPR/M/248/Add.1 
Page 239 
 
 
  (iii) Subsidies and other governmental assistance 
Question 6 
Page 76, para.186 
The Secretariat's report quotes the EU Commission's c onclusion in 2009 that "it is therefore important 
to plan the credible withdrawal of these measures…"  Could the EU explain if there is any plan to 
withdraw the state aid measures in the near future? 
 
Answer  
The measures adopted in the context of the financial and economic crisis had an exceptional nature 
and therefore were limited in time (until the end of 20 10).  The Commission's priority now is to ensure 
an appropriate exit from these exc eptional measures that encourages the economic recovery.  The 
rolling back process has already started with a gr adual phasing out on 1 December 2010 a decision 
was taken to prolong some of these measures until 31December 2011 but subject to stricter conditions 
keeping in mind that the main objective is to retur n to the normal rules as soon as possible when the 
financial situation normalises. 
(v) Competition Policy 
Question 7  
Page 87, para. 224 and footnote 250. 
Concerning the delays in entry of generic medicines,  the Secretariat's report mentions that "the EU 
considered that these instruments…may under certain  circumstances violate the European competition 
law". 
Could the EU clarify the circumstances and rele vant parts of the EU Competition Law which 
originator companies may be violating to pr otect the commercial life of their products? 
 
Answer  
Following several antitrust sector enquiries, the Commission found that competition in the 
pharmaceutical sector does not work as well as it sh ould.  The Commission found delay in the market 
entry of generic drugs and a decline in innovation as measured by less novel medicines reaching the 
market. The Commission is increasingly focusing more on attempts by originator companies to delay 
or hamper the introduction of generic medicines or of new, innovative drugs that may compete with 
their products already on the market.  For instance,  originator companies may use patent settlements 
in order to restrict of generic market entry as well as intervene in marketing authorization procedures 
to delay the entry of generic medicines.  Origi nator companies may also try to obtain or acquire 
patents  for the sole purpose of limiting the freedom of  operation of their competitors in marketing 
novel medicines.  
TURKEY II 
 
Report by the secretariat (WT/TPR/S/248)  
II. TRADE POLICY REGIME; 
(5) I NVESTMENT AGREEMENTS AND ARRANGEMENTS  
Question 8 
Paras 42-47, Pages 25-26 
Given the information provided in the para. 25-26;   Turkey would appreciate if the Commission could 
elaborate on: - the allocation of competences between the Commission and the member States to negotiate 
new BITs; and WT/TPR/M/248/Add.1 
Page 240  
 
 - the parameters of new EU policies regarding international agreements on FDI, especially 
concerning the balance between investor  and host country rights; as well as, 
- how the Commission envisions to incorporate public policy objectives including the 
protection of the environment, decent work, health and safety at work, consumer protection, cultural 
diversity, development policy and competition policy within the framework of its new FDI policy. 
 Answer  
The principles and parmmeters for the gradual implemen tation of the future EU policy, including with 
reference to the specific elements  mentioned in the question, a re set forth by the European 
Commission in its Communication "towards a comp rehensive EU internatio nal investment policy"'24.  
As explained in the report, the Lisbon Treaty integrates foreign di rect investment into EU external 
trade policy, thus attributing to the EU exclusive comp etence in this area (see para. 43).  As a result, 
the EU is competent to conclude trade agreemen ts with third countries including provisions 
concerning investment protection.  In addition, the above-mentioned Communication indicates that 
the new EU investment policy will only be implem ented gradually.  Therefore, the draft future 
Regulation establishing transitional  arrangements for bilateral investment agreements between 
Member States and third countries (mentioned in par. 45) establishes the conditions and the procedure under which Member States would be em powered to negotiate new bilateral investment 
agreements or re-negotiate existing ones.  The European Union's trade and investment policy has to fit with the way the EU and its Member 
States regulate economic activity within the Un ion and across our borders. Investment agreements 
should be consistent with the other policies of the Union and its Member States, including policies on  
the protection of the environment, decent work, health and safety at work, consumer protection, 
cultural diversity, development policy and competition policy.  Investment policy will continue to 
allow the Union and its Member States and our ne gotiating partners, the possibility to adopt and 
enforce measures necessary to pu rsue public policy objectives. 
 The future comprehensive investment policy should also be guided by the principles and objectives of 
the Union's external action more generally, including the promotion of the rule of law, human rights 
and sustainable development.  In this resp ect, the recently updated OECD Guidelines for 
Multinational Enterprises are an important instrume nt to help balance the rights and responsibilities 
of investors. 
 II. TRADE POLICY REGIME 
Question 9 
Para 25, page 21 
As stated in the Secretariat Report, "the EU elim inated tariff quotas on imports of rice and sugar under 
EBA in late 2009.  Importers of EBA sugar must pu rchase at a price not lower than 90% of the EU 
reference price until September 2012." Would European Union consider to expand the produ ct coverage of Everything But Arms and extend 
the application of it beyond the year 2012? 
 
Answer  
The EBA arrangement gives the least developed c ountries (LDCs) already duty free and quota-free 
access to the EU market for all products (all EU ta riff lines).  The only tariff lines which are excluded 
from EBA are arms.  Therefore, with the excep tion of arms, further expansion of the EBA product 
                                                      
24 Available at http://trade.ec.europa.eu/do clib/docs/2011/may/tradoc_147884.pdf).  WT/TPR/M/248/Add.1 
Page 241 
 
 
  coverage is not feasible. LDCs will however additiona lly benefit from the recently amended, more 
favourable, GSP Rules of Origin.  Furthermore under the proposal for the new GSP, th e effectiveness of the EBA scheme is expected to 
be strengthened further.  Reducing the GSP to fewer beneficiaries will reduce competitive pressure 
and make the preferences for LDCs more meaningful. 
The EBA arrangement is an open-ended system  and therefore continues to apply beyond 
2012.  
Report by the EU (WT/TPR/G/248) 
 (2) 
KEY DEVELOPMENTS IN THE EU  
Question 10 
Para 30, page. 8 
The Government Report states that "a resource-effi cient Europe" is the seventh flagship initiative, 
which establishes resource efficiency as the guiding principle for EU policies on energy, transport, 
climate change, industry, commoditi es, agriculture, fisheries, biodiversity and regional development." 
Does European Union consider a revision to the seven th flagship in the light of changing perceptions 
on the safety issues of nuclear energy?" 
 
Answer  
The events in Japan underline the vital importance of nuclear safety, which should be addressed by 
the European Union (EU) and its neighbouring countr ies together as an absolute policy priority. The  
Commission has pressed for a re-assessment of all EU  nuclear power plants.  The safety of all EU 
nuclear plants should be reviewed, on the basis of  a comprehensive and transparent risk and safety 
assessment ("stress tests").  However, the main objectives of the European en ergy policy, as highlighted in the Europe 2020 
seventh flagship initiative "A resource-efficient Eur ope" are still valid: support the shift towards a 
low carbon economy, increase the use of renewable energy sources, and promote energy efficiency.  
In order to step up Member States efforts to use energy more efficiently, the European Commission 
has just proposed a new directive on energy effic iency (COM(2011) 370 final).  The Commission's 
proposal follows the latest calls for action by the European Council and European Parliament to 
achieve the objective to reduce by 20% the EU's  anticipated energy consumption for 2020.  
 
(2) 
KEY DEVELOPMENTS IN THE EU  
2.1 Institutional Developments Question 11 
Paras 12-13, page 6  
The Government Report compares the existing framewo rk to the pre-Lisbon situation as regards the 
role of the European Parliament in the adoption of trade legislation; after underlining that the 
Parliament's "consent" is required for th e ratification of all trade agreements.  
1. How does the EU consider that the changes introduced by the Lisbon Treaty will affect the 
ratification of trade agreements, particularly th e possible Agreement to conclude multilateral trade 
negotiations under the Doha Development Agenda? 
2. Could the EU Delegation elaborate on the need s to redefine conditions to ratify all trade 
agreements? 
 
Answer  
1. There will be no significant change as regards  the DDA.  The Uruguay Round Agreement was 
also sent to the European Parliament for its assent. WT/TPR/M/248/Add.1 
Page 242  
 
 2. It is not appropriate to disc uss a redefinition of conditions to ratify.  Quite simply, the consent 
of the European Parliament will be required in al l cases, rather than just for certain, broad based 
agreements. 
 
UNITED STATES 
 WT/TPR/G/248 
 
Question 1 
Page 18, paragraph 83 
The EU states that the debate surrounding the futu re of the Common Agricultural Policy is partly 
focused on "greening of the first pillar direct payments by supporting agricultural measures and thus contributing to the overall environmental performance of the CAP."  Does the Commission classify all of its direct payments to farmers adopting or ganic methods as environmental payments?  Are these 
payments made on a one-time basis, only at th e time of conversion from non-organic to organic 
production, or are they recurring payments? 
 
Answer 
Payments for organic production are made dur ing conversion from non-organic to organic 
production.  
3.5 Bilateral and Regional Trade Relations 
Question 2 
Page 21, paragraph 97 
According to its Report, the EU has successful ly concluded negotiations for an Association 
Agreement with Central American countries.  Th e Report states, "the agreements also promote 
regional economic integration thro ugh rules and via linkages with c ooperation activities, and take care 
of broader concerns notably in the area of sust ainable development, the environment and of labour 
rights."  Please describe the "broader concerns" th at these agreements handle in further detail. 
 
Answer 
The quoted sentence and the reference to "broader concerns" refers to  the willingness to ensure that 
the EU's future trade relations with Central Am erica are supportive of, and conducive to, sustainable 
development.  This objective requires an appr oach that integrates economic, social and 
environmental considerations as mutually int erdependent pillars of sustainable development.  
 The agreement that the EU and Central America ha ve negotiated intends to ensure that trade and 
trade issues are not handled in is olation from social and environm ental objectives.  The provisions 
that have been negotiated foster a cooperative approach aiming at creating a sound platform to 
ensure that trade liberalization is conducted in th e respect of basic objectives and rules concerning 
labour and environment, and to maximize the positi ve contribution that strengthened trade relations 
may pay through, for instance, the encouragement  of trade schemes and trade practices that respond 
to sustainability criteria (for instance, fair  and ethical trade;  or eco-labelling initiatives). 
 
The negotiated provisions include commitments wi th regard to international and national protection 
standards, such as the core labour standards; stress the importance of the sustainable management of 
forests and fish stocks; and foresee a process of o verview and evaluation of the impacts of trade 
liberalisation on sustainable development, with a view to guiding the Parties' implementation 
decisions.  The negotiated text has been initialle d by EU and Central American negotiators and is 
publicly accessible through the website of the Directorate General for Trade of the European 
Commission. 
 WT/TPR/M/248/Add.1 
Page 243 
 
 
  Question 3 
Page 22, paragraph 104 
In its Report, the EU gives a brief overview of its on-going high-level trade dialogue with China, 
which includes intellectual property rights (IPR).  Please describe the issues being discussed under the 
IPR umbrella.  Do any of the discussions address industry standards and/or the interface between 
standards and IPR? 
 
Answer 
In our IP Dialogue we have exchanged views on a broad range of topics from substantive issues 
regarding IPR laws (i.e. comments on new legislati ve proposals…) to enforcement of IPR (i.e. access 
to justice, coherence of judgements and coor dination between law enforcement agencies…). 
Discussions have also covered the interface between innovation and IPR including technology transfer and patent protection.  Another subject raised was market  access regarding technical barriers to trade such as industry 
standards and the interface between those standards  and IPR.  In this context, the Chinese draft 
regulations for the administration of the formul ation and revision of patent-related national standards 
were discussed.  
 
Question 4 
Although the European Patent Office (EPO) is not an institution of the EU, most EU member states 
are also contracting states of the EPO.  In this resp ect, does the EU provide money directly to or make 
money available for the EPO's use for it to engage in activities with countries outside the EU?  If so, 
how much money does the EU provide on an annual  basis, and does the EU specify activities on 
which the money is to be spent or other conditions as sociated with use of the money?  If so, what are 
those conditions? 
 
Answer 
As has been noted in the question, the EPO is not an EU institution.  The EPO may apply for funding 
from EU initiatives, such as the Competitiven ess and Innovation Framework Programme (CIP) or 
research Framework Programme (FP7), provided th e funding request meets the requirements of the 
relevant programme.  The EU may also procure se rvices of the EPO, according to relevant public 
procurement rules.  Otherwise, the EPO does not receive funding from the EU.  
WT/TPR/S/248 
 II. TRADE POLICY REGIME 
(4) P
REFERENTIAL TRADE AGREEMENTS AND ARRANGEMENTS  
(i) Unilateral preferences 
 
Question 5 
Page 21, paragraph 24 
According to the Secretariat, "in March 2011, the EU was preparing a proposal to amend its GSP 
regime."  What will the EU's amendments address?   What is the status of the EU's efforts? 
 
Answer 
The current EU's GSP scheme is coming to an end in December 2011.  The European Commission 
has put forward a "roll-over" Regulation, extending  the present scheme until the end of 2013.  This 
"roll-over" Regulation was approved by the Europe an Parliament and Counc il in May 2011.  In 
parallel, the European Commission presented on the 10 May 2011 its proposal for a successor GSP, 
which is scheduled to enter into force in January 2014 at the latest. WT/TPR/M/248/Add.1 
Page 244  
 
 The Commission's proposal adapts the EU GSP sch eme to the changes that have occurred in the 
global landscape and in the trade, financial and development needs of  developing countries. 
The main aim of the proposal for the new scheme of generalised tariff preferen ces is to focus help on 
countries most in need.  Preferen ces will be concentrated on Leas t-Developed Countries (LDCs) and 
other low income countries.  More advanced economies will have the GSP preferences deferred. 
 
However, no developing country is excluded from the GSP.  Developing countries will be either a beneficiary or eligible to be a beneficiary.  More advanced economies will again receive preferences 
should there be a change in their trade, financial  and development needs as  defined in accordance 
with clear, objective and transparent criteria.  
 
The proposal promotes also the core principles of sustainable development and good governance by 
reinforcing in multiple ways the special incentive a rrangement known as GSP+ .  This regime offers 
additional tariff reductions to support vulnerable developing countries in the implementation of 
international conventions in the areas of human  and labour rights, sustainable development and good 
governance.  The proposal relaxes the economic criteri a necessary to become el igible for GSP+, thus 
allowing more countries to apply.  In the third place, in order to ensure that preferences are indeed used , the system becomes more 
stable, transparent and predictable for third count ries, and economic operators.  For example, the 
duration of the GSP scheme will be open-ended, rather than limited to 3 years like at present. 
 
The proposal will be the starting point for discussi on between the EU's two co-legislators:  Council 
and European Parliament.    (ii) Reciprocal preferences 
Question 6 
It is our understanding that the EU is currently negotiating fisheries access agreements alongside its 
Economic Partnership Agreements w ith African and Oceanic countries.  Please describe the fisheries 
management commitments that the EU is offering to undertake to ensure that its fleets do not 
overexploit those distant waters.  Answer 
First of all the EU would like to clarify the fo llowing:  Economic Partnerships Agreements are 
negotiated independently from Fisheries Partnerships Agreeme nts or FPAs, and vice-versa.  These 
two negotiations, even where they concern the same  country, are conducted separately and on their 
own merits.  
 
In actual fact the reduction and/or elimination of  import duties in Economic Partnership Agreements,  
including on fish products, are carried out exclusively as  a result of negotiations in the context of the 
aforementioned EPAs.   As regards on-going negotiations with African and Oceanic countries in fisheries, the talks concern 
the renewal of protocols to existing Fisheries Part nerships Agreements, in particular the provisions 
on fishing opportunities and financial transfers involved.  On the fisheries management commitments that the EU is offering to undertake to ensure that its fleets 
do not overexploit those distant waters the EU policy is the following:  
 
In waters under the jurisdiction of the countri es that conclude an FPA EU vessels are bound by the 
fisheries management rules established by the coas tal state.  Furthermore FPAs include explicit 
provisions on: WT/TPR/M/248/Add.1 
Page 245 
 
 
  - financial support to the coastal state for prom oting responsible fishing and the sustainable 
exploitation of fisheries resources, - cooperation in the relevant scientific  research with a view to monitori ng the state of resources in the 
coastal state's EEZ,  - the use of consultation mechanisms,  directly (i n the framework of a Joint Committee) and, where 
appropriate, within the Regional Fisheries Manage ment Organizations or other international 
organizations concerned, to ensure the sustainable management and conservation of relevant fish resources, - detailed rules for licensing of vessels, -  catch reporting and monitoring,  including by on-board observers. 
The above list is not exhaustive.  Another important  feature of the EU's FPAs is that they are 
"exclusive agreements":  once in  place, vessels flagged to an EU Member State can only fish under 
the FPA, and cannot enter into private agreements wi th the partner country.  This ensures a maximum 
of transparency of the activities of EU operators in the area. As a rule, EU vessels are subject to satellite monito ring by their flag state even when they are outside 
EU waters.  
Detailed information on each individual FPA concluded by the EU, including the fishing 
opportunities (species, number of vessels), the EU  financial contribution, the fees paid by EU 
operators, and other relevant components can be found at the following webpage: http://ec.europa.eu/fisheries/cfp/int ernational/agreements/index_en.htm. 
 
The reports of the meetings of the corresponding Joint Committee (EU – Coastal State) are available 
here: http://ec.europa.eu/fisheries/cfp/internati onal/agreements/joint_committees/index_en.htm. 
 
General information on the structure of FPA can be found here: 
http://ec.europa.eu/fisheries/documentation/public ations/cfp_factsheets/fisheries_partnership_agreem
ents_en.pdf.  Question 7 Page 24, paragraph 37  
The Secretariat's Report notes that the EU has en tered into interim EPAs with Papua New Guinea, 
Botswana, Burundi, Cameroon, Comoros, Côte d'I voire, Fiji, Ghana, Kenya, Lesotho, Madagascar, 
Mauritius, Mozambique, Namibia, Rwanda, Seyche lles, Swaziland, Tanzania, Uganda, Zambia and 
Zimbabwe.  Moreover, preferential treatment has al ready been afforded under these interim EPAs.  
However, only the interim EPAs for Cameroon and Cote  d'Ivoire have been notified to the WTO.  
Could the EU update the membership as to w hy these other EPAs have not been notified and 
whether/when the EU plans to do so? 
 
Answer 
As the US rightly notes, the EU has notified to WTO its agreements with Cameroon and with Côte 
d'Ivoire. As regards the EPA with Papua New Guinea and Fiji, the EU is about to transmit the related 
notification to WTO. With regards to the ag reements with Lesotho, Madagascar, Mauritius, 
Mozambique, Seychelles, Swaziland and Zimbabwe, we would like to inform that WTO notification 
will follow once these agreement have b een ratified by the Parties, and by the time they enter into 
force.  As regards the other countries mentioned in  this question, their respective agreements have not 
yet been signed. 
 WT/TPR/M/248/Add.1 
Page 246  
 
 III. TRADE POLICIES AND PRACTICES BY MEASURE 
(1) 
MEASURES DIRECTLY AFFECTING IMPORTS  
(i) Customs procedures 
 
Question 8 
Page 28, paragraph 3  
The EU states that though decisions of a national c ourt of one Member State are not binding on other 
member States, national courts have the possibility to refer cases to the Court of Justice of the EU for 
a preliminary ruling which is binding on all customs administrations and judges in the EU.  Would the 
EU explain under what circumstances the national court of a member State may seek referral to the 
Court of Justice of the EU?  May a case be referred to  the Court of Justice of the EU by a person or 
entity other than the national court of a member State?  
Answer 
In order to ensure the uniform application of EU law throughout the Union, national courts may, and 
if it is a Court of last instance it must, submit to  the Court questions - in a case pending before it - 
with regard to the interpretation or validity of European law.  Therefore, national courts may seek 
referral to the Court of Justice of the EU under any of the following two circumstances: 
- interpretation  of EU law:  the national judge requests th e Court of Justice to clarify a point of 
interpretation of European law in or der to be able to apply it correctly;  
- validity of EU law:  the national judge requests the Court of Justice to check the validity of an act of 
European law. 
 The ruling of the Court is given in the form of  a "preliminary ruling".  Although a referral to the 
Court of Justice may be requested by one of the par ties involved in the dispute, the decision to do so 
rests with the national court.  In any event, national courts must refer a matter to the Court of Justice 
in cases of doubt regarding a European provision. 
However this does not mean that natural and legal  persons have no standing before the Court.  An 
affected person or entity can bring an action before  the Court of Justice of the EU to either claim 
damages or to review the legality of an EU acts , which may lead to the annulment of the act 
concerned. 
 
Question 9 Page 30, paragraph 10 
The report states that program benefits depend on the type of certificate granted to the economic 
operator.  Please explain the various types of certific ates that are granted and the factors that are used 
to determine which type of certificate to issue?  Answer 
The EU issues three kinds of AEO certificates. Th e first kind is the AEO-C (Customs simplification). 
These certificates are issued  to economic operators who meet the first three criteria mentioned under 
the answer to question 40.  The second kind is the AEO-S (Security and safety).  These certificates are 
issued to economic operators who meet all four cr iteria mentioned under the answer to question 40. If  
economic operators meet all four criteria they may also opt for a combination AEO certificate 
Customs simplification/Security and safe ty, often called an AEO-F (for full). 
 The following benefits are listed in  the EU customs legislation: 
- Easier access to customs simplifications (AEO-C and AEO-F) 
- Notification of controls, under strict conditions (AEO-S and AEO-F) 
- Reduced data requirements for summary  declarations (AEO-S and AEO-F) 
- Fewer physical and documentary controls (AEO-C, AEO-S and AEO-F) 
- Priority treatment when controlled (AEO-C, AEO-S and AEO-F) 
- Choice of location where controls will be carried out (AEO-C, AEO-S and AEO-F). WT/TPR/M/248/Add.1 
Page 247 
 
 
  Question 10  
Page 30, paragraph 10 
The report states that guidelines have been publishe d relating to the authorized economic operator 
programme to ensure a common understanding and unifo rm application of the customs legislation.  
Are the guidelines legally binding? 
 
Answer 
The guidelines are not legally binding but they a re published on the EU website and their purpose is 
to provide a tool to facilitate the correct application of the EU AEO programme across the EU which 
the European Commission monitors. 
 
Question 11 
Page 31, paragraph 12 
The report cites Article 9 of Commission Regulation (EEC) No. 2954/93, 2 July 1993 for the 
procedure to resolve inconsistencies in binding info rmation issued by two or more member States.  
Article 9 states that the Commission "shall if ne cessary adopt a measure to  ensure the uniform 
application of the customs nomenclature."  What f actors does the EU consider in determining whether 
it is necessary to adopt such a measure?  How often has the EU issued such me asures?  What types of 
measures have been taken?   
Answer 
If following the discussion in the Committee,  all the Member States agree on the uniform 
classification of the product concerned, this is noted in  the minutes of the meeting.  If that is not the 
case, the Commission may propose meas ures such as classification regulations or explanatory notes 
to the Combined Nomenclature.  
During the last 5 years 122 classification regulat ions were published.  See details below: 
 
2010 24 
2009 20 
2008 19 
2007 33 
2006 26 
 
Examples:  
Commission Regulation (EU) No 727/2010 of 6 Augus t 2010 concerning the classification of certain 
goods in the Combined Nomenclature; 
Explanatory Notes to the Combined Nomenclatu re of the European Communities (2008/C 90/01). 
 
(iii) Rules of origin  
Question 12 
Page 32, paragraph 19 
The proposed regulation states that goods imported or placed on the market are subject to origin 
marking.  Please provide an example of a good which is not imported but is placed on the market that is subject to the origin marking. 
 
Answer 
According to the proposal, the control of impor ted goods on whether the marking requirements have 
been met may take place upon importation or when  the goods are placed on the market – but it 
applies only to imported goods  WT/TPR/M/248/Add.1 
Page 248  
 
 Question 13 
Page 32, paragraph 19  
The report states that the definition of country of or igin is based on the EU's non-preferential rules of 
origin.  How does the proposed regulation's definition of  country of origin differ from the "list rules" 
published by the EU.  Is it anticipated that different  country of origin determinations can occur under 
the non-preferential rules of origin and the proposed regulation for origin marking? 
 
Answer 
The determination of the origin to be indicated in the context of the proposed regulation is based on 
the non-preferential rules of origin as laid down in Articles 22 - 26 of Re gulation (EEC) no. 2913/92 
(Community Customs Code).  Thes e rules are identical to those applied for all other non-preferential 
purposes.  It is therefore not possible to imagine any  difference in the origin as determined under the 
non-preferential rules of origin and the on e serving for the origin marking requirements. 
 Question 14 
Page 32, paragraph 19  
The report states that the proposed legislation for origin marking exempts imported products from 
Iceland, Liechtenstein, Norway, Switzerland and Tu rkey.  What provisions of the EU's Agreements 
with these countries require them to be excluded from the marking requirements?  Please explain the 
proposed exemption in light of Article IX of GATT 1994. 
 
Answer 
The proposed scheme would not apply to a limite d number of non-EU countries (Turkey and the 
contracting parties of the EEA Agreement) owing to  the existing agreements between the EU and the 
relevant Parties.   
According to the WTO rules (in particular Article  XXIV:5 GATT 1994), there may be derogations to 
GATT rules for the purpose of customs unions or free trade areas.  Question 15 Page 32, paragraph 19 
The report states that the draft regulation must be a dopted by the Council before its entry into force.  
What is the status of the Council's review of the proposal? 
 
Answer 
The European Commission put forward its proposal for a regulation on the indication of the country of origin on 16 December 2005.  Following the entry into force of the Lisbon Treaty, the European 
Parliament became co-legislator on this proposal, which is to be adopted according to the ordinary 
legislative procedure.  Following the adoption of the Resolution of the European Parliament in  
October 2010, the discussions are going on in the Council, who is not legal ly constrained by any 
time-limit at this stage of the procedure.  (vi) Contingency measures 
Question 16 
Page 39, paragraph 50 
We acknowledge and appreciate the EU's recent effort s to improve transparency following its "green 
paper discussion" that culminated in a refurbis hed website and expanded disclosure in its trade 
remedy proceedings.  Are there any other measures that  will be taken to further refine the EU's trade 
defence instruments and if so, what is the timing for their implementation? 
 WT/TPR/M/248/Add.1 
Page 249 
 
 
  Answer 
In December 2010 the European Commission has awarded a contract for an evaluation of the 
European Union's trade defence instruments. Dependi ng on the results of the study or the completion 
of the Doha Development round, the Commission may envisage taking other measures to further 
refine the EU's trade defence instruments.  The stud y is envisaged to be completed by the end of 2011 
but the timing for implementation of any ot her measures, if any, is still not clear. 
 
Question 17 
Page 40, paragraph 54 
Under the "New Comitology Rules"  established by the treaty of Lisbon and illustrated in Chart II.1 of 
the Secretariat's report, please explain how the EU intends to structure the expanded Member State 
deliberations on proposals on an implementing act from the European Commission with respect to 
antidumping, countervailing duty and safeguard measures.  
 
Answer 
Regulation (EU) No 182/2011 of the European Parl iament and of the Council laying down the rules 
and general principles concerning mechanisms for control by Member States of the Commission's 
exercise of implementing powers ("the Comitology Re gulation") sets out specific procedures for the 
adoption of definitive anti-dumping and countervailing duties.  The Commission expects that in most cases the procedures for eseen in the Comitology Regulati on can be implemented quickly and 
efficiently within the current time framework.  However, in certain exceptional circumstances, having 
regard to the complexity of the investigation, th e application of the Comitology Regulation may have 
consequences on the length of time necessary to ado pt implementing acts.  Therefore, the Commission 
proposed in a Regulation amending certain regulatio ns relating to the common commercial policy as 
regards the procedures for the adoption of cert ain measures (COM(2011) 82 final of 7.3.2011, 
2011/0039 (COD)) ("the Omnibus proposal") to ad apt certain time periods in Council Regulation 
(EC) No 597/2009 of 11 June 2009 on protectio n against subsidised imports from countries not 
members of the European Community and in Counc il Regulation (EC) No 1225/2009 of 30 November 
2009 on protection against  dumped imports from countries not members of the European Community.  
The Omnibus proposal, on the other hand, does not adapt the time limits in Council Regulation (EC) No 260/2009 of 26 February 2009 on the common rules fo r imports or in Council Regulation (EC) No 
625/2009 of 7 July 2009 on common rules for impor t from certain third countries ("the safeguard 
regulations").  
In particular, it is proposed to allow for the extension, no later than 8 months from the publishing of 
the notice of initiation, of the maximum length of time for the imposition of provisional measures to 12 months from the initiation of the investigation in exceptional cases in light of the complexity of the 
investigation.  It is also proposed to allow the ext ension, no later than 9 months from the publishing of 
the notice of initiation, of the maximum length of  time for the investigation to 18 months in 
exceptional cases in the light of the complexity of the investigation, in line with the relevant WTO 
Agreements.  Whilst respecting the right of interest ed parties to be fully informed and to provide  
comments on the results of investigation, it is al so proposed to make adjustments on the rules on 
disclosure.  The discussions within the Europe an Parliament and Council are still at an early phase 
and therefore it is not yet clear when the Omnibus proposal will be adopted.  
Question 18 
Page 40, paragraph 55 
Please provide statistics for the number of interim re views, new exporter reviews, and refund reviews, 
respectively, conducted pursuant to the defin itive antidumping and countervailing duty measures 
identified in Tables III.5 and III.6 in each of the years from 2006 and 2010.  Additionally, the EU 
does not currently publish notifications of requests for refund reviews or its findings following refund 
reviews.  Please explain how the EU intends to impr ove the transparency of such proceedings in light WT/TPR/M/248/Add.1 
Page 250  
 
 of the transparency initiatives underway following "the green paper discussions" described elsewhere 
in this report.  
Answer 
 
 2006 2007 2008 2009 2010 
Interim reviews  18 24 13 14 12 
New exporters 
reviews  1 2 1 6 3 
 
Regarding refund applications, they have been notifie d in the semi-annual report to the WTO since 
2009 (8 refunds 200 - 48 refunds 2010).  The inform ation that is provided concerns Country/Customs 
Territory, Product, Investigation ID number, Original  effective date;  date of most recent extension, 
Number of refund requests received and the number of refund reviews commenced /completed. This 
information is not readily available for the period prior to 2009 in that format. 
 
Question 19 
Page 40, Table III.4 
The WTO Agreement on Implementation of Article VI of the General Agreement on Tariffs and 
Trade 1994, and the WTO Agreem ent on Subsidies and Countervailing Measures indicate that 
provisional measures may take the form of a provisional duty or, preferably, a security by cash 
deposit or bond equal to the amount of the duty prov isionally estimated.  For each of the provisional 
measures listed in Table III.4, please identify whic h EU member permitted the importers/exporters of 
merchandise subject to the provisional antidumping or countervailing duties to post bonds as security for entries instead of posting cash.  Answer 
Member States may impose provisional duties either by bank guarantee or cash guarantee.  Each Member State decides the manner in which thei r Customs Authorities will handle such matters.  
 
(viii) Technical regulations and standards 
Question 20 
Page 45, paragraph 72 
As the Secretariat notes, "during the last Review of the EU, some Members stated that the EU's 
regulatory practices and its tec hnical regulations and conformity assessment procedures had become 
increasingly important in determining access to the EU market, sometimes creating, in their view 
unnecessary obstacles to trade."  How is the EU work ing to improve the efficiency of its biotech 
regulatory system?  How are delays in biotech approvals, particularly those lingering in the comitology process, being addressed by the Commission?  
Answer 
A series of actions have been undertaken to impro ve the efficiency of the authorization procedure and 
in particular to improve the quality of the applic ations and the interactions between EFSA and the 
applicants (e.g. by the inclusion of a more deta iled rationale where questions are asked by EFSA to 
applicants). The following action deserves in particular to be stressed.  The Commission is currently finalising a 
Regulation on implementing rules concerning applica tions for authorization of genetically modified 
food and feed in accordance with Regulation (EC) No 1829/2003 of the European Parliament and of 
the Council and amending Regulations No (EC) 641/2004 and (EC) No 1981/2006.  A draft of this 
Regulation was notified under the SPS and the TBT agreements in January 2010 (ref. 
G/SPS/N/EEC/369 and G/TBT/N/EEC/304).  This dra ft Regulation aims at giving guidance to WT/TPR/M/248/Add.1 
Page 251 
 
 
  applicants for authorization of genetically modified food and feed  so as to ensure that the submitted 
application is complete in the sense that it fulfils the application criteria as defined by Regulation 
1829/2003 on GM food and feed.  This Regulation will be adopted throug h the comitology procedure.  
 
See also answer to question 26. 
 
Question 21 
Page 46, paragraphs 78 and 79 
The Secretariat advises that between October 2008 and January 2011, WTO Members have raised 17 
new concerns in the TBT Committee over several measu res that the EU or individual members States 
have proposed.  The specific concerns are containe d in Table III.7 of the Report.  Please provide an 
update on the steps being taken to address each of the following concerns:  Draft Commission 
Directive amending Council Directive 67/548/EEC (d angerous chemical substances);  Marketing 
standards for olive oil;  Requirements for ride-on lawn mowers (France);  Accreditation and market 
surveillance relating to the marketing of products;  EU restriction on the use of certain hazardous 
substances in electrical and electronic equipment;  Ban on the use of nickel-cadmium in batteries;  
Regulation on certain wine sector products;  Re gulation on the registration, evaluation and 
authorization of chemicals (REACH); Restricti ons on the use of Deca-bromo diphenylether (deca-
BDE) by Sweden;  Fire performance of construc tion products;  Regulation on classification, labelling 
and packaging of substances and mixtures (ATPs and CLP).   Answer 
In the light of the number of measures this question is  related to, it is not possible to list all steps that 
have been taken in the light of  every comment received from WTO members.  For all measures 
referred to in Table III.7 of the Report, detaile d written replies have been given to written comments 
from WTO Members received by the EU TBT Enquiry Po int, explaining how the notified text has been 
modified or why the text has not been modified following comments from a WTO Member. All answers 
are available on the European Commission's TBT database (http:// ec.europa.eu/enterprise/tbt/). 
Moreover, the EU gave extensive re plies, including the steps taken, in the TBT Committee meetings as 
documented in the minutes prepared by the WTO Secretariat. 
 
Question 22  
Page 52, paragraphs 89-93  
The Secretariat Report says "from January 2010, the EU applies a new common framework on 
accreditation, set out in Regulation 765/2008."  W ill the EU or its Member States continue to 
recognize non-EU accreditation bodies that have b een accredited under the ILAC MRA and the IAF 
MLA?  Will the EU or its Member States conti nue to accept conformity assessments performed by 
such bodies?  The EU has stated that the regulati on does not apply outside of the EU, and thus, will 
not affect U.S. accreditors or the international conformity assessment system.  Please explain how the application of Regulation 765/2008 does not confli ct with the measure's provisions.  Please also 
explain the technical basis for the assumptions behi nd the regulation includi ng that:  (1) accreditation 
activities should be limited to governmental bodies or bodies that act in the exercise of official 
authority; (2) accreditations should be viewed with  a higher degree of confidence when provided by a 
single national accreditation body; and (3) competiti on could compromise the quality of accreditations 
and should therefore be limited.  Finally, pl ease explain why the regulation imposes conditions on 
accreditors operating in the EU market that exte nd beyond the relevant ISO/IEC standard applied 
under the ILAC MRA and the IAF MLA.  When do es the EU plan to issue guidance to Member 
States indicating that accreditations by ILAC MRA and IAF MLA signatories are no less reliable than 
accreditations by European national bodies, which would allow Member States to accept testing and 
certification from non-EU bodies that have been accredited by an ILAC MRA or IAF MLA signatory?  WT/TPR/M/248/Add.1 
Page 252  
 
 Answer 
Pursuant to Article 2(11) of Regulation No. 765/2008, "accreditation body" is a body in an EU 
Member State that performs accreditation with author ity derived from the State.  As a result, only the 
single national accreditation bodies appointed by ea ch Member State and fulfilling the requirements 
of Regulation No. 765/2008 are considered to be  accreditation bodies within the meaning of the 
Regulation.  
 As explained at earlier TBT Committee meetings, the EU legislator considered as a matter of policy 
choice that, in order to strengthen, the role of accreditation as the last level of control in the 
conformity assessment chain, accreditation should be  performed as a public authority activity, free 
from commercial pressure and on a not-for-profit basis.  
 The EU's common accreditation framework is a tool  to support the EU's internal regulatory policy 
and is based on the existing international accreditation framework.  It is not intended to change or 
undermine international cooperation arrangements operated under ILAC (International Laboratory 
Accreditation Cooperation) and IAF (International A ccreditation Forum) and to affect or force 
changes in accreditation practices in other WTO Members.  For further details, reference is made to the presentation given by an EU expert at the TBT 
Committee meeting of 24-25 March 2010 (JOB/TBT/2 of 16.4.2010) and the discussions on the EU's common accreditation framework that have taken pl ace in the TBT Committee since June 2009, as 
documented in the meeting minutes prepared by the WTO Secretariat. 
 Question 23 Page 54, paragraph 94  
The Secretariat states:  "In addition to a comm on accreditation framework, Regulation No. 765/2008 
sets out common principles for market surveillance...  Under the Regulation, customs authorities must 
carry out "appropriate checks on the characteristics of products on an adequate  scale" before those 
products can be marketed in the EU."  Please expl ain what the EU means by "appropriate checks on 
the characteristics of products on an adequate scale" .  Also, what steps has the EU taken to ensure 
consistent application of this guidance on appropriate checks across the Member States?  Answer 
It must be clarified that the text provided in pa ra. 91 of the Report by the Secretariat is not fully 
accurate and, for consistency with the wording of Article 27(1) of Regulation No. 765/2008, should in 
fact have read as follows:  
"In addition to a common accreditation framewo rk, Regulation No. 765/2008 sets out common 
principles for market surveillance.   According to the Commission, a majority of member States have 
made legal and administrative changes to meet these requirements.
25  Under the Regulation, the 
authorities in charge of the control of  products entering the Community market  shall carry out 
"appropriate checks on the characteristics of pr oducts on an adequate scale" before those products 
can be marketed in the EU.26" 
 
In fact, for goods imported into the EU, the effort s carried out by enforcement authorities in the EU to 
ensure that only safe and compliant products are pla ced on the EU market is an exercise that involves 
both  Market Surveillance Authorities as well as Customs. 
                                                      
25 European Commission document ENTR/C1/McM/nt ARES.c1(2010).  Viewed at:  http://ec.europa. 
eu/enterprise/policies/single-market-goods/files/new-legi slative-framework/nlf_ implementation_report_en.pdf. 
26 Article 27(1), Regulation (EC) No. 765/2008 of the European Parliament and of the Council, 
9 July 2008. WT/TPR/M/248/Add.1 
Page 253 
 
 
  Guidelines have been developed for use by both Customs and Market Surveillance Authorities of the 
EU Member States to ensure that this task is ca rried out appropriately.  The guidelines provide for 
the necessary tools for EU Me mber States to ensure adequate co operation between these authorities, 
independently of the organizational structure of th e different Member States.  They also provide core 
information to Customs Authorities allowing them  to screen goods on product safety and compliance 
requirements and the required follow up  to be given to goods when there are indications that these 
goods may be non-compliant or unsafe.  
 
On the notions of "appropriate checks on the c haracteristics of products on an adequate scale", 
discussions are on-going with national authorities to  determine in practice what this will mean 
concretely. In other words the notion of samp ling and the identification of the most appropriate 
control are still under examination with the objective of being as less burdensome as possible for 
trade flows but effective in identifying non complying products  
 (ix) Sanitary and phytosanitary standards (SPS) 
Question 24 
Page 60, paragraph 119 
The Secretariat Report states the following:  "under Regulation No. 882/2004, the Commission may 
recognize specified pre-export checks that a non-EU member State carries out on feed and food.  The Commission recognizes pre-export controls carried out  by the United States on peanuts and derived 
products with respect to aflatoxins.  The EU is discussing with Canada the possibility of recognizing 
Canada's pre-export checks of wheat and certain derived products with respect to ochratoxin A."  
What other pre-export inspections and/or certifi cations does the EU have with other countries? 
 
Answer 
Currently there is no other similar system in place. 
 
Question 25 Page 60, paragraphs 120-122 
The Secretariat Report states that the EU has propo sed a regulation that would allow Member States 
to prohibit or restrict the cultivation of GMOs  based on grounds other than those covered by 
environmental and health risks asse ssed under the existing EU authorization system for GMOs.  How 
would this proposal support a science-based approval system in the EU? 
 
Answer 
The proposal does not affect the science-based approval which remains regulated at EU level under the EU legislation.  The proposal only aims at aut horising MS to ban the cultivation of EU authorized 
GMOs on other legitimate grounds related to the publ ic interest which are different from those which 
have been assessed during the EU authorization of GMOs. 
 
Question 26 
In 2009, the United States asked the EU about delays in its GMO approvals.  In response  (see 
WTO/TPR/M/214/Add.1 page 287, question 36) , the EU stated that it is "committed to correctly 
applying the EU legislative framework in the respect  of the timeline foreseen by the legislation.  In 
particular, whenever possible the Commission has forwarded the proposal to the Standing Committee 
within the three-month period foreseen by the legisl ation."  In the context of the EU's 2011 TPR, the 
United States would like to know the following:  if the Commission were to receive a complete 
application, would it wait for other applications before submitting to the Standing Committee?  Also, 
how does the Commission ensure that products re ceive a timely vote when monthly Standing 
Committee meetings are cancelled? 
 WT/TPR/M/248/Add.1 
Page 254  
 
 Answer 
EU legislation does not require to the Commission to convene monthly Standing Committee meetings. 
It requires the Commission to submit to the Standing Committee a draft decision regarding an 
application within three months after receiving the opinion of the authority.  This means that the 
organization of these meetings is triggered by the fa ct that a decision subject to the vote of the 
competent Committee has to be taken to implement bas ic acts.  In view of ensuring a rationalisation 
of public expenditures, it may happens that the Commi ssion ensures that a sufficient number of issues 
are put on the agenda for the Committee to meet. In this context, the EU reiterates its commitment to correctly applying the EU legislative framework 
in the respect of the timeline foreseen by the legislation. 
 
(3) 
MEASURES AFFECTING PRODUCTION AND TRADE  
(i) Business framework and foreign investment regime 
Question 27 
Page 64, paragraph 143 
The Secretariat notes that the Treaty on the Functio ning of the EU prohibits restrictions on capital 
movements among EU member States, and between EU and non-EU members.  It then notes exemptions to this prohibition, including for restri ctions "justified on the grounds of public policy or 
public security."  How is the term "public policy"  understood for purposes of the exemption to the 
prohibition on restrictions to capital movement?  Wh at is the scope of measures or policy areas that 
are covered by this exemption?  What measures of go vernment are generally not justified on some or 
another public policy ground? 
 
Answer 
According to standing case law of the Court of Justice of the European Union, which ultimately 
interprets the concept of public policy in the context of the EU legal order, this concept, first, comes 
into play where a genuine and sufficiently serious th reat affects one of the fundamental interests of 
society and, second, must, as a justification for a derogation from a fundamental principle of the 
Treaty, be narrowly construed (see Judgement of the Court of Justice, C-161/07, para. 34).  Moreover 
a legal remedy must be available.  
 
It follows  from the case law that measures which, by reason of exceptions provided for by the Treaty, 
impose restrictions on the free movement of capital and freedom of establishment to public order, to 
public security and to public health, must pass the proportionality test, be in conformity with the 
principle of legal certainty and not be implemente d for purely economic ends (see judgement of the 
Court of Justice, C-463/00 para. 34).   
These principles apply to investment restrictions in  general. As outlined, purely economic reasons 
cannot provide a justification.  By way of examp le and without providing an exhaustive list, with 
regard to public security and requirem ents in public interest, the Court has for instance accepted  that 
securing a minimum supply in the petroleum, teleco mmunications and electricity sectors may justify 
restrictions (provided proportionality and other criteria are met), while it was found that a 
commercial bank and a tobacco company were not pr oviding public services justifying restrictions 
(C-463/00 para. 71, 74).  
 Question 28 Page 64, paragraph 144  
The Secretariat notes that, pursuant to the Lisbon Tr eaty, a measure relating to direct investment 
between EU and non-EU members requires the assent of the Council, but that such assent is 
mandatory where the measure "is a step backwards in Union law as regards the liberalization of the 
movement of capital to or from third countries."  C ould the EU clarify what "a step backwards" means 
in this context?  As currently drafted, the langua ge in the Secretariat's report suggests that Council WT/TPR/M/248/Add.1 
Page 255 
 
 
  approval is mandatory where a measure results in less  liberal or more restrictive capital movements to 
or from countries outside the EU.  Is this correct?  If so, what is the policy intent behind this Treaty provision?  
Answer 
Article 64(2) TFEU provides a legal basis for the Council and the European Parliament to adopt 
measures on a proposal from the Commission deali ng with certain movement of capital between the 
Member States and third countries.  For such me asures normally a qualified majority suffices. 
However if measures are introduced which constitute "a  step backwards in Union law as regards the 
liberalization of the movement of capital to or fr om third countries" unanimity is required according 
to Article 64(3) TFEU (as already was the case pursuant  to Article 57(2) of the EC Treaty).  Thus 
from the European Commission's point of view in  cases where EU law already provided for an 
explicit harmonization of the overall regime with r espect to third countries any tightening of that 
regime would be subject to a unanimity requirement.  To be noted that a definitive interpretation of 
the Treaty can only be given by the Court of Justi ce of the European Union in the context of the facts 
of individual cases presented to it.  
Question 29 
Page 65, paragraph 148 
The Secretariat notes that, under its amended Fo reign Trade and Payments Act, Germany can 
"examine foreign transactions to determine whether th ey jeopardize public interest or public security."  
How is "public interest" defined for the purpo ses of reviews of inward investments conducted 
pursuant to the amended Foreign Trade and Payments Act?  Are there any limitations to the scope of 
what may be considered "public interest"? 
 
Answer 
The German law (paragraph 7 Aussenwirtschaftsgeset z, as published in BGBl I, p. 1150, of 
27/05/200927) expressly states that the examination may o ccur where such a purchase or acquisition 
jeopardises the public order or security of Germany in  the sense of Articles 46 and 58(1) of the EC 
Treaty (now Articles 52 and 65 TFEU);  this re quires a genuine and sufficiently serious threat, 
affecting one of the fundamental interests of society.   Thus the German law, while requiring a genuine 
and sufficiently serious threat, explicitly refers to EU law.  According to standing jurisprudence of the 
Court of Justice of the European Union, this no tion is to be interpreted narrowly and excludes purely 
economic reasons (see also reply provided to question 27). 
 
(iii) Subsidies and other government assistance 
 
Question 30  
Page 70, paragraph 163  
The Secretariat notes that "the authority to determ ine whether state aid is allowed rests with the 
European Commission.  The Commission's assessment of aid is generally a balancing of the positive 
effects of aid (in terms of contributing to the achievement of a well-defined objective of common interest) and its negative effects (namely the resu lting distortion of competition and trade)."  How, 
specifically, does the Commission make the decision as to whether the positive or negative effects are 
larger?  
Answer 
Article 107 (1) TFEU establishes the principle that Stat e aid, which distorts or threatens to distort 
competition, is prohibited in so far as it affects trade between Member States.  However, State aid, 
which contributes to well-defined objectives of co mmon European interest without unduly distorting 
                                                      
27 http://bundesrecht.juris.de/awg/BJNR004810961.html. WT/TPR/M/248/Add.1 
Page 256  
 
 competition between undertakings and trade between Member States, may be considered compatible 
with the common market. Art. 107(3) TFEU therefore a llows exceptions to the general prohibition of 
State aid in order to achieve such objectives in th e common interest.  As a result, for measures which 
have been found to fall under Art. 107(1) TFEU , the European Commission has to assess their 
compatibility under Art. 107(3).  Within this ma ndate, the Commission assesses a wide range of aid 
measures targeted by Member States at objecti ves of common interest of economic and social 
development.  
In order to provide transparency and legal certaint y, the Commission defined more detailed criteria 
for the assessment of different types of aid measu res.  These criteria set out under which conditions 
aid measures for certain objectives (e.g. for regional  development, R&D&I, environmental protection 
etc.) can be found to be com patible with the common market.  
For the most straightforward case s, a block exemption Regulation applies, allowing Member States to 
directly apply the conditions of the Regulation withou t a need for prior notification and approval by 
the Commission.  For such cases, the conditions of  the block exemption Regul ation can be considered 
as the outcome of a balancing exercise between the negative and positive effects of the aid measures, 
which the Commission has carried out in advance.  
For cases not covered by the block exem ption, the notification obligation applies.  In its assessment of 
notifications the Commission applies the criteria la id down in guidelines and frameworks for different 
types of aid.  For the largest cases, which could create significant distortions of competition, an in-
depth assessment will be carried out, based on the so-called balancing test in which the negative 
effects on trade and competition in the common market  will be balanced against its positive effects in 
terms of a contribution to the achievement of  well-defined objectives of common interest.  
The test basically consists of the following questions: 1. Is the aid measure aimed at a we ll-defined objective of common interest? 
2. Is the aid well designed to deliver the objec tive of common interest i.e. does the proposed aid 
address the market failure or other objectives? 
 i. Is the aid an appropriate policy instrument to address the policy objective 
 concerned?  ii. Is there an incentive effect, i.e. does the aid change the behaviour of the aid  recipient?  iii. Is the aid measure proportionate to the problem tackled, i.e. could the same change 
 in behaviour not be obtained with less aid? 
3. Are the distortions of competition and effect  on trade limited, so that the overall balance is 
positive? 
For more information, please see: http://ec.europa. eu/competition/state_aid /overview/index_en.html. 
 
(iv) Government procurement 
Question 31 
Page 78, paragraph 189 
The Secretariat says that "the positions taken by the EU in the GPA and bilateral negotiations will 
have significant consequences for the future of the Agreement."  Please explain how the positions 
taken by the EU in bilateral agreements covering government pr ocurement "will have significant 
consequences for the future of the GPA"? 
 WT/TPR/M/248/Add.1 
Page 257 
 
 
  Answer 
The EU is an advocate of an ambi tious opening of international p ublic procurement markets together 
with the setting up of modern and efficient proc urement systems.  It has done so through the 
conclusion of international procurement agreemen ts such as the WTO Government Procurement 
Agreement and bilateral Free Trade Agreements. 
 
The EU has the aspiration of seeing the GPA beco me a multilateral Agreement .  In its bilateral 
agreements, the EU promotes the negotiation of proc urement provisions in accord with the GPA 
standards and disciplines.  Where appropriate, it al so attempts to include commitments by its 
negotiation partners to consider accession to the G PA.  In doing so, the EU contributes to the 
dissemination of the GPA standards among other WT O members not yet Parties to the GPA and to  
incentivising the expansion of the Agreement's membership.  In its b ilateral agreements with Parties 
to the GPA, the EU also seeks to build up from procedural elements already included in the GPA 
and/or broadening the market access commitments.  
Question 32  
Page 78, paragraph 191 
Are there any plans to institute Buy European provisions by any of  the Member States or the EU? 
 
Answer 
The EU procurement regime is designed to secure tr ansparency as well as a level of competition that 
both stimulates businesses and delivers savings for pub lic authorities.  There are no "Buy European" 
policies in the European Union and therefore there is no EU-wide prohibition against the purchase of 
foreign goods or services.  Also, foreign goods  or services are neither subject to additional 
constraints such as price preferences, preferentia l regimes in favour of European SMEs or any 
similar measures. 
The EU is currently considering proposing a new legi slative instrument rela ting to the access to the 
European Union's procurement mark et by suppliers, goods and services from outside the EU.  This 
new piece of legislation is not meant to create bar riers for suppliers from outside the EU.  It is 
designed to help secure and increase symmetry in access to public proc urement markets. Its key aims 
are to strengthen the EU negotiation position wh en negotiating access to public procurement markets 
and to clarify the agreed terms of access to the EU's procurement market both for procurements 
committed and not committed internationally.  
Question 33  
Page 78, paragraph 192 
According to the Secretariat, "In 2008, procurem ent published in the Official Journal represented 
between 1.2% and 9.6% of member States' GDP, between 7.1% and 61.1% of total procurement 
(Table III.11)."  Please explain why in the EU , which stresses the importance of openness and 
transparency in other countries procurement market s, some Member States only publish notices for as 
little as 7.1 per cent of their procurement, and no State publishes notice for more than 61 per cent of its procurement?  The Secretariat further states, "the authorities attribute these variations to the 
different structures of the public sector (and its spending power) in the respective member State."  
What are the differences in the structures and how do those differences contribute to the variation in 
percentages?  
Answer 
As explained in the report, some Member States have a centralised purchasing policy whereas may 
have a more decentralised purchasing policy.  This difference is reflected in the figures provided in 
the report  WT/TPR/M/248/Add.1 
Page 258  
 
 Question 34 
Page 80, paragraph 193 
When the award notice is posted on the TED website , does it include the full value of the contract 
award?  If the contract is a multi-year contract, is th e value of the contract for all years posted?  If the 
contract includes additional options, are those options included in the total value, or is only the base 
value of the contract posted?  Regarding the pe rcentage of above-threshol d procurement and total 
procurement open to GPA partners that was awarde d to GPA partners, does that data take into 
consideration whether the goods or services provi ded under the contracts were from non-EU GPA 
signatories?  That is, if the "suppliers from non- EU GPA signatories" provided goods produced in the 
EU or services supplied in the EU, would tho se procurements be included in those figures? 
 
Answer 
The contract award notice does indeed  include the full value of the c ontract, as it is the element which 
permits to determine whether the contract in questio n is covered or not by the EU public procurement 
directives.  The same rule applies for multi- year contracts and contracts with options. 
As indicated in the EU GPA Report for the year 2007, the data provided refer to the procurement 
contracts awarded to firms from GPA Parties. 
 
Question 35 
Page 80, paragraph 197 
According to the Secretariat, all but one Member State had transposed the "Remedies Directive" by 
March 2011.  Which Member State has not transposed Directive 2007/66/EC and why? 
 
Answer 
The EU does not consider opportune to provide this information within the framework of the TPR, as 
this may have an adverse effect on the infringement  proceedings with the Member State.  The 
European Commission, in charge of the infri ngement procedures, publishes press releases on 
individual infringement cases, once the proce dure reaches the stage of reasoned opinion or the 
referral to court.  As regards public  procurement, see the following link: 
http://ec.europa.eu/internal_marke t/publicprocurement/index_en.htm. 
 
Question 36 
Page 83, paragraph 204 What EU authority and what methodology does th e EU use to determine whether the split-up of 
contracts may circumvent the EU Directives?  Coul d the EU provide data on the number and value of 
contracts that are awarded or allotted to accommodate social conditions or promote SME participation?   
 
Answer 
The EU contracting authorities are allowed to award contracts in lots (see Article 9(5) of Directive 
2004/18/EC and article 17(6)(a) of Directive 2004/17/EC),  as long as this does not lead to avoiding 
the threshold of the EU Directives and the GPA.  
 
In the contract documents, the contracting authority  may ask or may be required by a Member State 
to ask the bidder to indicate in hi s bid any share of the contract he  may intend to sub-contract.  The 
EU Directives do not contain any pr ovision that would allow splitting of contracts in lots with the 
view to accommodating social considerations.  The EU is equipped with a specific tool (an electro nic platform in-built to OJ/TED) that allows for 
monitoring of the split ups.  The EU Treaty prov ides then for a procedu re to investigate potential 
infringements of the procurement rules and remed y them. Additionally, the EU's harmonized system 
for bid challenges allows to the bidders to claim their rights.  
 WT/TPR/M/248/Add.1 
Page 259 
 
 
  Question 37 
Page 83, paragraph 205 
According to the Secretariat, ... "to promote SMEs  participation in the public procurement market, 
contracting authorities in some member States have suggested to award a specific call for tender into 
composite lots."  Please describe how these SME polic ies operate.  Please also describe the relevant 
provisions in the 2006 Code on Public Procurement in France. 
 
Answer 
As mentioned in the response to question 36, the EU  Procurement Directives allow contracts to be 
awarded in the form of separate lots.  The sub-divi sion of public purchases into lots clearly facilitates 
access by SMEs, both quantitatively (the size of the lots may better correspond to the productive 
capacity of the SME) and qualitatively (the content of the lots may correspond more closely to the 
specialised sector of the SME).  Furthermore, sub-dividing contra cts into lots and thereby further 
opening the way for SMEs to participate, broadens  competition, which is beneficial for the 
contracting authorities provided that this is appr opriate and feasible in the light of the respective 
works, supplies and services concerned.  
The 2006 Code on Public Procurement in France foresee s, as a general rule, the award of  contracts 
in the form of separate lots.  However, contra cting authorities have the freedom to award global 
contracts if they consider that the sub-division into lo ts would, in the given case, restrict competition, 
or risk to render the execution of the contract tec hnically difficult or expensiv e, or if the contracting 
authority would not be in a position to ensure the co -ordination of the performance of the contract. 
 
Question 38 
Page 83, paragraph 206 
Besides France and Germany, do any other Member States have special laws or codes in place that allow for or require contracts to be awarded to SMEs?  How do France and Germany ensure that the 
process of splitting these contracts into smaller lots does not circumvent Article 9 (3) of Directive 
2004/18/EC, and Article 17 (2) of Directive 2004/17/EC?  
Answer 
Austria, Hungary and Romania have included in th eir national procurement legislation specific 
provisions on this issue.  According to Austri an law, contracting authorities have the freedom to 
decide whether to award a global contract or to s ub-divide it into separate lots.  When taking such a 
decision, they have to take into account economic or technical aspects.  In Hungary and Romania, the 
promotion of the sub-division of contracts into lots is accompanied in some Member States by 
provisions of national law which specify that the selection criteria must be related and proportionate 
to the individual lots and not to the aggregate value of all lots. 
For the rest of the question, reference is made to  the responses provided to questions 36 and 37. 
 
(vi) Intellectual property rights 
Question 39  
Page 92, paragraphs 241-242 
Will the agreement on a unitary patent proceed to implementation in the absence of a solution on the 
question of a unitary patent litigation scheme?  If so, what is the estimated implementation date?  
Please provide detailed information on the cost difference to a person seeking a patent under the 
unitary patent scheme and under existing routes for obtaining patent protection in multiple countries 
in Europe, and please account in this estimate for the cost of any translation and describe how the 
translation agreement would work in practice.  If th e unitary patent is impl emented without a unitary 
litigation scheme in place, what would be the effect  on the unitary patent if an EU national court WT/TPR/M/248/Add.1 
Page 260  
 
 where the unitary patent had effect found the patent to be invalid?  Would the patent remain valid in 
other EU member states or would the patent be invalid throughout the EU?  
Answer 
The envisaged reform of the patent system comprise s two main elements – the creation of unitary 
patent protection and the setting up of a unified spec ialised patent court.  The two elements follow 
different legislative procedures, but both are cons idered indispensable and are discussed in parallel 
as a package.  The regulation creating unitary patent protection is still in the legislative adoption procedure, but its latest version establishes a link with  the setting up of the unified patent court.  Both 
elements should therefore enter into application at  the same time.  It is foreseen that a political 
agreement on both elements is reached by the end of  2011.  It would take several years after that to 
sign, ratify and set up the unified patent court. It has been estimated that currently the costs of obtaining a European pa tent of average length
28 in all 
27 EU Member States amount to approximately 36 000 EUR, out of which around 4 000 EUR are procedural fees and 32 000 EUR are costs of valida tion of a granted patent in each Member State 
(mainly translation costs).  Under the proposed system, once a European patent is granted by the 
European Patent Office the patent holder will have the possibility to request a unitary effect in 25 Member States instead of validating the patent in each of them separately (which will remain 
possible).  The patent holder will be requested to s ubmit a translation of the claims of the patent into 
two working languages of the European Patent Office and, during a transitional period of up to 12 years, one additional translation of the whole pate nt into any official language of the EU.  The 
costs of obtaining a patent of average length in 25 Member States would be reduced to approximately 
6 500 EUR during the transitional period and 4 700 EUR after the transitional period (including 
around 4 000 EUR of procedural fees that remai n unchanged).  Complyin g with the additional 
requirements, the patent holder will also be able to validate the same European patent in any other 
state party to the European Patent Convention.  
 
As indicated above, it is currently foreseen that the unitary patent protection will only enter into 
application once the unified patent court is set up.  Therefore, it is not foreseen that national courts 
would have competence over European patents with unitary effect in 25 Member States. 
 
IV. DEVELOPMENTS IN SELECTED SECTORS 
(1) 
AGRICULTURE  
(ii) Agriculture policies 
Question 40 
Page 106, paragraph 16 
The Secretariat Report states that the EU permits Member states to reserve some of the funds for 
direct payments for production-linked payments, but from 2012, this flexibility will apply only to 
suckler cows, sheep and goats, a nd cotton (where 35 per cent of the cotton component of the Single 
Payment Scheme must remain coupled to prod uction) while transitional support for fruits and 
vegetable production will continue un til budget year 2014 at the latest.  Please clarify what percentage 
of the Single Payment Scheme payments can be dire cted at suckler cows and sheep and goats in the 
form of production-linked payments.  For what re ason does the EU provide suckler cows, sheep and 
goats, and cotton this exception and why does cotton specifically requires 35 per cent?  Please provide 
greater detail on the composition of transitiona l support for fruits and vegetable production. 
 
Answer 
The suckler cow and sheep and goat premia are not  based on a percentage in relation to the 
decoupled payments.  The suckler cow premium is a payment based on individual ceilings which have 
                                                      
28 20 pages: 15 pages of description, 4 pages of claims, 1 page of drawings. WT/TPR/M/248/Add.1 
Page 261 
 
 
  been established pursuant to Article 126(2) of Regul ation 1782/2003.  Member States ensure that the 
sum of premium rights does not exceed a fixed national ceiling, which is contained in the legislation 
(Article 112 of Regulation 73/2009 of 19 January 20 09).  A similar scheme applies to the premia for 
sheep and goats (Article 104 of Regulation 73/2009).  The reason for continued payment of these 
premia is maintaining a minimum level of agric ultural production in certain regions, in particular 
those where farmers cannot have recourse to other ec onomic alternatives.  When the cotton sector 
was integrated into the single payment scheme, it was deemed n ecessary for part of the support to 
continue to be linked to the cultivation of cotton through a crop specific per hectare payment based on 
fixed area and yield, to ensure against any risk of disruption to production in the cotton producing regions. This choice was maintained  in accordance with objectives set out in Protocol No 4 on cotton 
attached to the 1979 Act of Accession of Greece.  This minimum level of coupled support can 
therefore be considered to be a constitutional obli gation of the European Union.  This minimum 
of 35% was established on the basis of economic  analysis.  For detailed information on the 
transitional support for fruit and vegetables please ref er to the EU DS:2 notification presenting the 
2007 reform in this sector (G/AG/N/EEC/69 of 24 January 2011). 
 
Question 41  
Page 107, paragraph 20 
The Secretariat Report states that intervention prices  were set for several products including durum 
wheat, barley, maize, sorghum, and paddy rice, but the quantity that may be bought into intervention has been set at zero.  The EU may decide in th e future to continue public intervention in these 
products.  In addition, intervention prices and quanti ties were also set for other products in paragraph 
19.  Does the EU plan to phase out or further re duce its use of intervention prices for any of these 
commodities under the EU's continued Common Ag ricultural Policy (CAP) Reform processes? 
 
Answer 
The preparation of the CAP post-2013 is cu rrently on-going, and therefore, we cannot provide 
detailed answers on the final outcome.  We invite th e US to refer to the legislative proposals once they 
are publicly available.  Meanwhile, we would li ke to refer to the Communication of the European 
Commission "the CAP towards 2020:  Meeting the f ood, natural resources and territorial challenges 
of the future" published in November 2010".  
 
Question 42 Page 107, paragraph 22 
The Secretariat Report states that the EU provides subsidies through producer organizations.  Please 
clarify and provide greater deta il regarding how these payments are transferred from the Commission 
level to the Member State and/or producer orga nizations.  Are these payments notified as green box 
payments?  How are payments for peach producer organizations for both fresh and processed fruits 
distributed?  
Answer 
The EU supports recognized producer organizations (POs) operating in the fruit and vegetables 
sector through a financial contribution to the operational funds set up by the POs to finance their 
operational programmes.  The support does not invo lve direct aids to fruit and vegetables producers 
and is not linked to the production of any sp ecific product.  The operational programmes may 
comprise different types of actions, including acqu isition of fixed assets, training and technical 
assistance, crisis prevention and management measures, research and experimental production, 
environmental actions. General production costs are not  eligible.  The specific actions eligible for 
support are defined by Member States in a specific National Strategy. 
 
In general, the EU financial contribution cannot be higher than the following thresholds: 
 4.1% of the value of the marketed production of the POs; WT/TPR/M/248/Add.1 
Page 262  
 
  50% of the actual expenditure incurred under th e operational programme.  The remaining part 
is to be financed by the POs'  members or the PO itself.  
 
Aid is paid to producer organizatio ns through Payment Agencies of the Member States on behalf of 
the European Union. 
 
Payments disbursed through POs are classified as Green Box payments for those support types that 
are in notification G/AG/N/EEC/69 of 24 January 2011.  For other payments no exemption of the reduction commitment is claimed.   EU support to producer organizations only concerns fresh produce, whether it is intended for fresh 
consumption or for processing.  There is no su pport for processing.  Moreover, since the support 
does not refer to specific products, th e data for peaches are not available.  
 
Question 43 
Page 110, paragraph 39 
The Secretariat states that "in marketing year 20 07/08, sugar products received most export subsidies 
in terms of both the quantity of subsidized exports  and the value of the subsidies."  Please explain 
what subsidies were applied to these exports.    
Answer 
The subsidies referred to were export refunds whic h are subsidies in the sense of Art 9 (1) of 
Agreement on Agriculture.  
Fisheries 
 
Question 44  
The United States acknowledges the EU's current effo rts to reform the Common Fisheries Policy and 
welcomes reports that such reforms, including to  the European Fisheries Fund (EFF), will reduce 
government assistance to EU fishing fleets in the fu ture.  Please explain what elements of the reforms 
will address current overfishing and overcapacity in EU waters as well as in areas beyond the EEZs 
where EU Member fleets operate through Fisher ies Partnership Agreements.  Please also explain 
whether the current levels of the EFF (approximately  €615 million per year) will be maintained and, if 
so, how the EU will ensure that such aid does not  contribute to overcapacity or overfishing?  Will 
such reforms include a reduction in the level of de minimis  aid (currently at the level of €30,000 per 
vessel per 3-year period) or will emergency aid, such as that which was provided in 2008 at the 
amount of €400 million, continue to be provided to the EU fishing sector?  Question 45 
Can the EU please explain the process for tracking " de minimis " payments to fishermen paid out by 
Member states?  In practice, for what purposes ha ve the funds been used by fishermen?  What 
percentages of the funds have gone towards ves sel acquisition/constructi on/modernization and for 
fuel?  
 
Question 46 
Does the EU require that Member states consider th e biological condition of the relevant fishery when 
determining whether or not to provide de minimis  funding or other subsidies to a fishing enterprise?  
Is such funding linked to specific fisheries or type of fishing activity?  Question 47. 
In preparing for its upcoming reform of the common fisheries policy, what is the attitude of the EU 
with respect to the introduction of transferable limited access fishing rights? WT/TPR/M/248/Add.1 
Page 263 
 
 
  Answer to questions 44 to 47 
The Fisheries sector has not been the subject of th e present review, nevertheless the EU is glad to see 
the US continued interest of the EU's fisheries sector and the Common Fisheries Policy.  A single 
answer to questions 44 to 47 is provided.  
As correctly mentioned by the US, the EU is in  the process of reforming the Common Fisheries Policy 
(CFP).  While it would be premature, at this point in time, to provide detailed answers to the on the 
contents of the reform, not the least because of the nature of the EU's legislative process, the  future 
CFP shall ensure fishing and aquaculture activities that provide long-term sustainable economic, 
environmental and social conditions and contribute to the availability of food supplies.  
 
Following commitments made by the EU in th e context of international organizations and 
arrangements, the future policy shall also ensu re the sustainable exploitation of living marine 
biological resources that restores and maintains popul ations of harvested species at levels which can 
produce the maximum sustainable yield, where possible not later than 2015 and by 2020 at the latest.   
 
With regard to the future of govern ment assistance to the fisheries sector, and in the context of the 
aforementioned reform objectives, the EU could consider, among possible options, to provide 
financial support for innovative actions contributing to  smart and inclusive growth in the industry, to 
help reinvigorate coastal communities, to ease  the transition to low-impact fisheries, to boost 
aquaculture and address the social consequences of the industry's restructuring.  An increased focus 
on an integrated maritime policy could also be  considered in the context of the reform. 
 Concerning the overall amount of funding to be prov ided in the context of the reformed CFP, it is 
expected that it will remain at comparable, or even lower, levels as under the existing European Fisheries Fund, which will expire in 2013.  
 
To ensure that there is no fishing overcapacity, i.e. that fishing capacity ma tches available resources, 
remains, and will remain, one of the main objectives  of the CFP.  To achieve this objective the EU 
could consider, in the context of the reform, to  address the drivers that can lead to over-capacity 
through, for example, compulsory ma ximum fleet capacity ceilings, ent ry/exit schemes, conditions for 
capacity withdrawal, distribution and structure of harvesting rights, etc. 
 
On the specific issue of addressing overfishing and o ver-capacity in non-EU waters please to refer to 
the reply provided to question 6.  In relation to the questions of the US on the EU's "de minimis" aid, which is implemented by means of 
Commission Regulation (EC) No 875/2007 of 24 July 2007, extensive and detailed information is 
available at the following internet addresses:  Short description of the applicable legislation: http://europa.eu/legislation_su mmaries/maritime_affairs_and_fish eries/fisheries_sector_organization
_and_financing/l66042_en.htm. 
Detailed information:  http://ec.eur opa.eu/fisheries/state_aid/index_en.htm. 
 
As some elements of the "de minimis" regime, in particular the conditions attached to the effective 
granting of aid, are linked to the provisions of th e existing CFP, it is not excl uded that this regime will 
be subject to review as part of the overall reform. 
 
Finally, concerning  the issues raised in questi on 47, the EU would like to refer the US to the 
document "Synthesis of the Consultation on the Reform of the Common Fisheries Policy" 
(Commission Staff Working Document), SEC(2010)428 final of 16 April 2010.  This document WT/TPR/M/248/Add.1 
Page 264  
 
 includes information on the views expressed by stak eholders and by the public on the introduction of 
transferable limited access fishing rights.  This document is available at  the following internet address: 
http://ec.europa.eu/fisheries/reform/sec(2010)0428_en.pdf. 
Further information on the consultation on the ref orm of the Common Fisheries Policy can be found  
at the following internet address:  http ://ec.europa.eu/fisheries/reform/index_en.htm. 
 
(2) 
TRADE IN SERVICES  
Energy 
 
Question 48 
According to the EU's 2009 TPR (see WT/TPR/M/214/Add.1 page 21, question 44) 
The EU Renewable Energy Directive (RED) states that  the "Community shall endeavour to conclude 
bilateral or multilateral agreements with third coun tries containing provisions on sustainability criteria 
that correspond to those of this Directive."  The RED also states that "the Commission may decide 
that voluntary national or international schemes  setting standards for the production of biomass 
products contain accurate data for the purposes of Ar ticle 17 (2) or demonstrate that consignments of 
biofuel comply with the sustainability criteria set out in Article 17 (3) to (5).  
Question 49 
Please provide details on the process for entering into a bilateral or multilateral agreement.  Have any 
such agreements been established?  Please describe how voluntary schemes are evaluated as 
complying with the sustainability criteria in the RE D?  How does the EU ensu re that these schemes do 
not include requirements that go beyond those outlined in the RED?  Answer to questions 48 and 49 
The mechanism for the EU to conclude an interna tional agreement is set out in Article 218 of the 
Treaty on the Functioning of the European Union.  The issues to be consid ered in such an agreement 
and the mechanism for the Commission to subsequent ly recognize such agreement for the purposes of 
compliance with the sustainability  criteria are set out in Artic le 18 paragraphs 4 to 6 of the 
Renewable Energy Directive (Directive 2009/28/EC).  At present no negotiations on an international 
agreement concerning the EU sustainab ility criteria have been initiated.  
 The assessment and recognition process for the volunt ary schemes is explained in the June 2010 
"Communication from the Commission on voluntary sch emes and default values in the EU biofuels 
and bioliquids sustainability scheme" (OJ 2010/C 160/01).  Voluntary schemes can contain more 
sustainability issues or criteria than those in the Renewable Energy Directive, but they do not have to. 
There is no limitation on who can submit a voluntary scheme for recognition.  Thus, anyone is free to 
submit for Commission recognition a voluntary schem e that e.g. includes only the sustainability 
criteria included in the Renewable Energy Directive.  COSTA RICA 
 Informe de la Unión Europea (documento WT/TPR/G/248)  Question 1 
¿Podría la UE brindar mayor información sobr e la frase "cuando concurran determinadas 
condiciones", que deberán renegociar los Estados miembros en los acuer dos de inversión con terceros 
países?  (página 11, párrafo 40).  WT/TPR/M/248/Add.1 
Page 265 
 
 
  Answer 
The proposal for a Regulation establishing transiti onal arrangements for bilateral investment 
agreements between Member States and third countri es – once adopted – will establish the conditions 
and the procedure under which Member States woul d be empowered to negotiate new bilateral 
investment agreements or re-negotiate existing on es.  Since the proposed Regulation is still under 
discussion between relevant EU institutions, no furthe r information is available at this stage.   
 Question 2 
En el párrafo 59 se señala que "la Comisión presentará en 2011 una propuesta legislativa relativa a un 
instrumento de la UE que aumente la capacidad de la Unión de conseguir una mejor simetría en el 
acceso a los mercados de contratación pública en las economías desarrolladas y en las grandes 
economías emergentes, basándose en la aplicación de  los compromisos internacionales".  ¿Podría la 
UE detallar con mayor precisión en qué consiste es te instrumento y cómo piensan implementarlo? 
(página 15, párrafo 59).  Answer 
The EU is currently considering proposing a new legi slative instrument rela ting to the access to the 
European Union's procurement mark et by suppliers, goods and services from outside the EU.  This 
new piece of legislation is not meant to create bar riers for suppliers from outside the EU.  It is 
designed to help secure and increase reciprocity in access to public procurement markets.  Its key 
aims are to strengthen the EU negotiation positi on when negotiating access to public procurement 
markets and to clarify the agreed terms of acc ess to the EU's procurement market both for 
procurements committed and not committed internationally. 
Before adopting any concrete legislative proposal , the EU is conducting an exhaustive economic and 
political impact assessment of the envisaged future policy initiative.  In doing so, the EU is assessing 
a number of different policy options.  The content of the future legislative proposal is yet not defined 
and will largely depend on the outcome of the impact assessment.  
 Question 3 
¿Ha valorado la UE la posibilidad de incluir en su s acuerdos comerciales preferenciales la aplicación 
del sistema de auto-certificación del origen por pa rte del exportador, que piensa implementar a partir 
del 2017 para su sistema de preferencias unilaterales (SGP)?  (página 15, párrafo 60). 
 
Answer 
Currently existing EU's FTAs already provide for self- certification of origin by means of declaration 
made out by an exporter, as an alternative to the use of certificates EUR 1 issued by the competent 
authorities.  Nevertheless, the general direction of  modifications introduced in recently adopted GSP 
rules of origin, namely abolishment of certificates and introduction of a system of registered exporters 
entitled to make out statements on origin themselves is  also taken into accoun t in presently negotiated 
FTAs, in the sense introduction of declarations of  origin, based on currently existing system of 
approved exporters, as the only preferential proofs of  origin applicable within the said agreements. 
 Question 4 
En la Sección 3.3 (Creación de un ento rno propicio para el Comercio), la UE menciona que a raíz de 
la recesión económica mundial cabía esperar un aument o de las medidas de defensa comercial, pero 
que estas medidas afectaron únicamente alrededor del 0,5% del comercio en el año 2009.¿Podría la 
UE aclarar si durante el año 2009 hubo una redu cción o un aumento en términos absolutos de las 
investigaciones sobre medidas de defensa come rcial iniciadas?  (página 19, párrafo 80). 
 
Answer 
Data on a the number of trade defence cases initiate d on a yearly basis can be found in the TPR page 
40, Table III.4 and page 42 , Table III.6  WT/TPR/M/248/Add.1 
Page 266  
 
 Question 5 
¿Qué productos se incluyen en la  red de seguridad  alimentaria mencionada en el párrafo 82, y qué 
porcentaje de la ayuda comunitaria se direcciona  a estos programas?  (página 20, párrafo 82). 
 
Answer 
Public intervention concerns the following products: common wheat, durum wheat, barley, maize and 
sorghum, paddy rice, 600.000t of white or raw sugar  produced under quota, fresh and chilled meat of 
beef and veal, 30.000t of butter and 109.000t of skimmed milk powder.  The quantities of durum wheat, barley, maize, sorghum and paddy rice t hat can be bought are as of the marketing year 
2009/2010 set at zero tonnes.  Intervention for sugar is phased out after 2009/2010.  
 
Spending on public intervention accounted fo r 0.2% of the CAP budget in budget year 2009 
(budgetary outturn).  We invite Costa Rica to consult the EU budget online: http://eur-lex.europa.eu/budget/www/index-en.htm.  
Question 6 ¿Se conoce el monto monetario de la PAC reformada?  ¿Qué distribución se hará por país miembro de 
la UE?  (página 20, párrafo 84).  
Answer 
The EU would like to refer Costa Rica to the European Commission Communication COM(2011)500 
final of 29 June 2011 entitled  "Budget for Europe 2020". 
 Question 7 
¿Podría la UE brindar mayor información sobr e las nuevas medidas que está estudiando para 
profundizar aún más el mercado interior de servicios?  (página 21, párrafo 88). 
 
Answer 
The Services Directive was a major step forward, bu t work remains to be done to make EU services 
markets work better.  Gains from a better functi oning Single Market for services are estimated at 
annual profits of €60 to €140 billion, a gr owth of GDP of between 0.6 and 1.5%.  
 
Nevertheless, while services curren tly represent two-thirds of the EU's GDP and employment., they 
only account for around one-fifth of total intra-EU  trade and today, only about  8% of European SMEs 
do business in other Member States.  In response, the EU has launched targeted actions to strengthen 
EU services markets, notably: 
 Making sure the Single Market works on the ground 
In 2011 and 2012, the Commission has started and will carry out a "performance check" of the 
Single Market for services from the user's persp ective.  The "performance check" will take 
account of all other EU rules applying to servi ces beyond the Services Directive and will assess 
how these different EU rules interact.  The objective is to identify specific practical problems that 
hamper the internal market for services and how th e interaction between different rules may have 
unintended effects.  
 Removing obstacles to cross-border services 
The "mutual evaluation" provided particular evide nce of difficulties in the cross-border provision 
of services without permanent establishment (wh ere the service provider is not permanently based 
in the country he/she is offering the service).   The Commission will now closely monitor the 
effects of the Services Directive in this respect.  A first progress report will be published by the 
end of 2011 and from then on an nually.  The emergence of new reg ulatory barriers to services in 
Member States' legislation must also be avoided.  Such barriers can stem from Member States 
revising their establishment requirements and th e Commission will closely monitor relevant 
developments. WT/TPR/M/248/Add.1 
Page 267 
 
 
  Question 8 
¿Podría la UE brindar mayor información sobre l as exenciones NMF que mantiene de conformidad 
con el artículo II del GATS y el plazo en que pr oyecta su remoción?  (página 21, párrafo 89). 
 
Answer 
The EU's and its Member States' MFN exemptions are published at the recent documents distributed 
by the WTO Secretariat (JOB/SERV/29 and WTO/JOB/ SERV/30) within the context of the third 
review of the MFN exemptions. During the dedicate d discussions in the CTS in Geneva, the EU has 
responded in detail to WTO Members' questions on its MFN exemptions, as well as on the exemptions 
maintained by its Member States.  The EU has also supplied information on the specific reasons 
justifying the maintenance of those exemptions and stated that the eventual removal of any MFN 
exemptions is part of market access discussions.    Question 9 
El informe menciona que a partir del 1º de julio de  2011, el acuerdo de libre comercio entre la UE y 
Corea del Sur firmado en octubre de 2010, será de  carácter provisional hasta que tenga lugar su 
ratificación final por los Estados miembros. ¿Podría la UE especificar a qué se refiere con carácter provisional? ¿Cuál sería el alcance de este acuerdo, si está pendiente la ratificación por los estados miembros de la UE? (página 22, párrafo 92) 
 
Answer 
The European Union and its Memb er States are parties to the Free Trade Agreement with South 
Korea.  As a consequence, the EU as well as all 27 Member States have to ratify the Agreement. 
Pending the completion of the procedures for its conclusion by the European Union and its Member 
States, the European Union decided to apply the Ag reement on a provisional basis in accordance with 
Art. 218, para. 5, of the Treaty on the Functi oning of the European Union.  The provisional 
application applies to all provisions of the FTA exc ept a small number of provisions as specified in 
Art. 3, para. 1, of the Council Decision 2011/265/EU of 16 September 2010, namely in the areas of criminal enforcement of intellectual property ri ghts and cultural cooperation that fall under the 
competence of the Member States.  Question 10 
¿Tiene la UE una fecha tentativa prevista para la  conclusión de las negociaciones del acuerdo de libre 
comercio con el Canadá?  (página 22, párrafo 95). 
 
Answer 
The negotiations for a comprehensive free trade  agreement between the EU and Canada could be 
concluded in 2012.  
 Question 11 
El Informe hace mención sobre el compromiso de la  UE e India a finales del 2010, en concluir las 
negociaciones de un acuerdo de libre comercio, inicia do en el 2007.  Sobre este particular, y dada la 
práctica comercial de la India de negociar acuerdos parciales con sus socios, ¿podría la UE ampliar 
sobre el alcance de este acuerdo y sus avances?  (página 23, párrafo 96). 
 
Answer 
The negotiation for a broad-based Free Trade Agreem ent (FTA) with India is part of the EU's Global  
Europe Strategy, which recommends a new gen eration of comprehensive and competitive-driven 
FTAs based primarily on economic criteria and regulatory cooperation and convergence.  In line with 
this, the EU-India FTA is to be ambitious going beyond both sides' commitments in the WTO and 
encompasses not only market access  for goods and services, but other issues, such as TBTs, NTBs and 
SPS, rules of origin, competition, customs and trad e facilitation, public procurement, IPR, trade 
defence, dispute settlement, sustainable developm ent and transparency.  In 2010, discussions gained  WT/TPR/M/248/Add.1 
Page 268  
 
 momentum and significant progress has been achieved .  Both parties stay strongly committed to 
bridge the remaining gaps and attaining an am bitious deal as soon as possible. 
 Question 12 
¿Podría la UE detallar las medidas concretas que fueron acordadas en la reunión del Consejo 
Económico Trasatlántico con los Estados Unidos el  17 de diciembre del 2010, con miras a promover 
un entorno comercial que reduzca los obstáculos re glamentarios y fomente la innovación, la 
utilización de normas compartidas y la actividad de las empresas de alta tecnología? (página 24, 
párrafo 103) 
 
Answer 
Following the strong political mandate received from  the EU-US Lisbon Summit, the Transatlantic 
Economic Council (TEC) met on 17 December 2010  in Washington DC with an impressive 
participation at EU and US ministerial level, showing the commitment of both sides to the TEC as a leading transatlantic economic policy forum.  
The EU and US Representatives under lined their vision of TEC as a process which is meant to 
continue its work and produce concrete results throughout the year.  The annual meeting brought 
together the breadth and depth of EU-US ec onomic cooperation, currently ong-oing, thereby 
achieving synergies and providing political impulse and direction.  The TEC focused on advancing transatlantic economic convergence, but also stren gthened its strategic dimension when discussing 
global economic issues and third country issues.  
The debate was organized around three main themes:  a) Innovation, technology and green jobs;  b) 
regulatory cooperation and c) the transatlantic marketplace.  The meeting addressed a number of 
important areas of cooperation, ranging from secu re trade to healthcare and electric cars. Concrete 
deliverables and initiatives were adopted, which should c ontribute to the joint objective of generating 
growth and jobs across the Atlantic.  Examples include Secure Trade, SMEs, E-health, ICT services, 
raw materials, energy efficien cy, chemicals, regulatory cooperation and cooperation on standards. 
The Transatlantic Business Dialogue (TABD) and the Transatlantic Consumer Dialogue (TACD) 
were consulted both in Brussels and on the eve of the TEC, when there were also meetings with 
representatives of the Transatlantic Legislat ors Dialogue (TALD) and Labour representatives. 
Question 13 
El Informe indica que con respecto a su relación con China, "la UE pretende convertir esta relación en una verdadera asociación estratégica", basada en las relaciones económicas sólidas y en rápido 
crecimiento.  En este sentido, ¿pod ría la UE explicar de forma más extensa, qué se entiende por una 
"asociación estratégica"? ¿Existe algún interés por parte de la UE de contar con un instrumento comercial con China, que fomente la liberalización en  su intercambio comercial? (página 24, párrafo 
104)  Answer 
The EU's trade with China continues to grow rapidly.   In 2010, our bilateral trade in goods reached € 
395 billion, almost € 100 billion more than the year be fore.  Despite the crisis and notwithstanding a 
large deficit in our trade with China and certain i ssues related to imbalances in market access, China 
is the EU's fastest growth market for our exports of  both goods and services.  China also remains key 
destination for EU investments.  At the same time,  China is not only a source of consumer products, 
but increasingly of essential components  for European firms.  In light of these developments, China's 
rise as a major global economy, and the increasing exp ectations of China's international partners for 
China to play a role globally and multilaterally  that reflects its size and development, the EU's 
policies towards China aim at developing a cohe rent approach of enhanced dialogue, stronger 
bilateral engagement, and greater shared international responsibilities.  These lines  all run through WT/TPR/M/248/Add.1 
Page 269 
 
 
  what European leaders have discussed recently as thei r visions for Europe's long-term partnership 
with China.  The EU is not negotiating, or in the process of p reparing negotiations for, a free trade agreement with 
China. 
 
Question 14 
¿Qué acciones específicas se está tomando para prom over el acceso al mercado europeo de productos 
orgánicos o derivados de procesos productivos  sostenibles? (página 26, párrafo 112) 
 
Answer 
Rules for market access of organic products im ported into the EU are defined precisely29.  Currently, 
imports are mostly permitted th rough authorizations delivered c onsignment by consignment by 
competent authorities of the EU Member States.  Ho wever, this kind of authorization is progressively 
phased out and replaced by a new import regime at  EU level. The EU has already recognized the 
organic standards and the control systems of ten count ries, including Costa-Rica, as equivalent and 
has received applications from other countries.   The equivalency recognition reduces the 
administrative burden of the importers.  In additi on, the EU has opened the possibility of a direct 
recognition of equivalency of control bodies in th ird countries which are not recognized.  The use of 
the EU organic logo is allowed on the packaging of imported organic products. 
Concerning products subject to sustainability assur ance schemes, such as fair and ethical trade 
schemes or eco-labels, the EU is supporting activities aimed at promoting such initiatives30.  This 
includes financial support to projects enhancing transparency and disseminat ing information among 
producers and exporters in developing countries on the criteria underlying different non-governmental trade-related sustainability assurance schemes, so as to strengthen their capacity to 
participate in more sustainable prod uction and trade.  Several awareness-raising projects are also 
on-going in the EU.  
Informe de la Secretaría de la OMC (documentos WT/TPR/S/248)  
 
Question 15 
Alemania es el mayor comerciante de los Estados Miembros de la UE.  Durante la década anterior al inicio de la crisis sobresalieron las exportaci ones alemanas, resultado que obedeció en parte a la 
mejora de la competitividad de los precios y co stos. ¿Podría la UE ampliar sobre estas políticas de 
incentivos y proporcionar ejemplos? (página 2, párrafo 4) 
 
Answer 
The performance of Germany's exports has been larg ely favourable over the last  years.  In the decade 
before the crisis (1998-2007), exports of goods  and services in constant prices expanded at an 
average rate of around 8% per year, compared to around 6% for both the EU-27 and the euro area.  Since the early 2000s, the increase in the degree of ope nness (as measured by the share of exports in 
GDP) has gained momentum, the current account bal ance has moved into surplus, and the net 
external position has increased considerably reflecti ng a healthy financial positi on of households and 
corporations.  Net exports were the main driver of  German growth during this period.  However, its 
                                                      
29 Council Regulation (EC) No 834/2007 of 28 Ju ne 2007 on organic produ ction and labelling of 
organic products and repealing Regulation (EEC) No 20 92/91 (OJ L 189, 20.07.2007, p.1) and Commission 
Regulation (EC) No 1235/2008 of 8 D ecember 2008 laying down detailed ru les for implementation of Council 
Regulation (EC) No 834/2007 as regards the arrangements for imports of organic products from third countries 
(OJ L 334, 12.12.2008, p.25). 
30 COM(2009) 215 final "Contributing to Sustaina ble Development: The role of Fair Trade and 
Nongovernmental Trade-related Su stainability Assurance Schemes". WT/TPR/M/248/Add.1 
Page 270  
 
 largely export-oriented economy with a strong  focus on investment goods, also made Germany 
particularly vulnerable to the slump in global tr ade triggered by the recent economic and financial 
crisis.  The trade shock had real German exports pl ummeting by 14% in 2009.  With its comparative 
advantage in investment goods and its cost and pri ce competitiveness in terms of the real effective 
exchange rate (REER) remaining broadly intact, Germany was nevertheless well placed to benefit 
from the recovery especially in emerging market ec onomies.  Indeed, exports rebounded strongly in 
2010 (+14%) and their strong performance has so fa r continued in 2011 (+13½% year-on-year in the 
first quarter).  
While some recent reforms may have had an indi rect and limited positive impact on exports, the 
latter's strong growth during the years prior to the crisis and during the recovery is not related to a 
major dedicated strategy of the authorities to raise exports as exists in other European countries (e.g. 
Ireland).  Germany's export-orientation is rooted in the long-established openness of the economy, 
strong manufacturing traditions (Mitte lstand) and the fact that Germany is relatively poorly endowed 
with natural resources.  The main trading partn ers of Germany are the Member States of the EU, 
which absorb about 2/3 of all exports. 
During the years previous to the crisis, Germany was the only country among the large euro area 
Member States that was able to even slightly inc rease its share in world exports, while many 
industrialized countries lost market shares to the benefit of emerging economies.  Wage moderation 
and cost reductions by relocation and outsourcing part s of the supply chains to lower-cost countries 
explain the improvement of price compe titiveness, while factors influencing non-price 
competitiveness, such as the numb er of patents, seem to have influenced  the pre-crisis rise in exports 
to a lesser extent.  Nevertheless, important structur al reforms undertaken since the first half of the 
2000s, notably the so-called "Hartz" reforms rende ring the labour market more flexible may also 
have contributed to Germany's overall compe titiveness.  Foreign demand for investment goods 
(notably the machinery and equipment sector and the transport equipment secto r) from catching-up 
economies and economies experiencing asset price bubbles also contributed to the increase in exports 
before the crisis and the sharp decrease during the crisis.  
REER indicators had appreciated markedly following German reunification, but sustained wage 
moderation, stronger average productivity growth  driven by increased labour shedding, and a 
sustained negative inflation differential due to tig ht monetary policy and sluggish demand contributed 
substantially to a trend depreciation vis-à-vis the re st of the euro area after 1995.  In fact, while 
Germany's external competitiveness has been restor ed to pre-reunification-levels vis-à-vis a broad 
group of competitors, the economy has even become  more competitive than in the early 1990s in 
relation to other euro-area Member States.  Chang es in the corporate sector also played a role. 
Rising labour cost during the shor t-lived reunification boom, the rapi d catching up of East German 
wages towards western levels in th e nineties and the relatively weak total factor productivity growth 
were reflected in low profitability of the German cor porate sector compared to that of the euro area. 
Firms sought to restore profitability by holding back domestic investment, resorting to labour-saving 
rationalisation, and relocating or outsourcing the low-end of the value-added chain to lower-cost areas, in particular towards the new Member Stat es.  Rationalization measures, together with the 
moderate settlements in wage negotiations, allowe d nominal unit labour cost relative to the average 
of Germany's 35 major trading partners to fall by nearly 25% since its 1995 peak and resulted in an 
increase of profit margins of German exporters in th e years prior to the crisis.  Nevertheless, on 
average German wages remain amongst the highest in Europe. 
Question 16 
Los desequilibrios fiscales en Grecia provocaron una cr isis de la deuda públi ca que se ha propagado a 
otros países de la zona euro. ¿Cuáles medi das o qué tipo de "paquetes de ayuda" se están 
considerando para contrarrestar o minimizar est os efectos negativos?  Favor ampliar sobre el 
denominado "semestre europeo". (página 5, párrafo 13) WT/TPR/M/248/Add.1 
Page 271 
 
 
  Answer 
The 2008-2009 global crisis exposed the vulnerabil ities of the Greek economy.   The extent of the 
deterioration in the fiscal position was revealed late  due to grave deficiencies in Greece's accounting 
and statistical systems.  This delayed the implem entation of corrective measures.  As concerns about 
Greek fiscal sustainability arose and global risk aversion heightened, market sentiment vis-à-vis 
Greece worsened sharply in early 2010.  In Ap ril 2010, Greece asked for international financial 
assistance as it was confronted with sizeable fi nancing needs and not able to access international 
capital markets.  On 3 May 2010, Greece pres ented an encompassing adjustment programme 
supported by financial assistance provided by the euro-area Member States and the IMF amounting 
to EUR 110 billion.  The accompanying Memorandum of Understanding and its successive 
supplements lay down the economic policy conditions on the basis of which the financial assistance is 
disbursed. Compliance with programme conditiona lity is monitored on a quarterly basis.  The 
quarterly assessments by the EU can be found in: http://ec.europa.eu/economy_finance/public ations/occasional_paper/2010/op61_en.htm. 
http://ec.europa.eu/economy_finance/public ations/occasional_paper/2010/op68_en.htm. 
http://ec.europa.eu/economy_finance/public ations/occasional_paper/2010/op72_en.htm. 
http://ec.europa.eu/economy_finance/public ations/occasional_paper/2011/op77_en.htm. 
 
The European semester is part of a broader set of  measures to improve policy coordination and 
surveillance in the EU.  An overview of these measures can be found at (also available in Spanish) http://europa.eu/rapid/pressReleasesA ction.do?reference=MEMO/11/364. 
 
Question 17 
¿Podría la UE indicar cuándo se proyecta que entre a regir el reglamento por el que se establecen 
disposiciones transitorias para los convenios bilate rales de inversión entre los Estados miembros y 
terceros países?  (página 29, párrafo 44). 
 
Answer 
The Commission indeed proposed a draft Regul ation establishing transitional arrangements for 
bilateral investment agreements to the Council and the European Parliament.  However, this draft 
needs to be adopted by the Council and the European Parliament through the ordinary legislative procedure as defined in Article 289 and 294 of the TFEU .  This procedure is currently on-going.  No 
further information is available at this stage. 
 Question 18 
¿Podría la UE explicar el tratamiento que se le darán a los acuerdos bilaterales de inversión cuando 
sean incompatibles con la legislación de la UE, dupli quen acuerdos existentes entre la UE y terceros 
países, o menoscaben la política de inversiones de la UE?  (página 29, párrafo 44). 
 
Answer 
The future Regulation establishing transitional a rrangements for bilateral investment agreements 
between Member States and third countries (mentioned in par. 45 and question 2 above) will establish 
the conditions and the procedure under which Memb er States would be empowered to negotiate new 
bilateral investment agreements or re-negotiate existing ones.  Since the proposed Regulation is still 
under discussion between relevant EU institutions, no furt her information is available at this stage.   
 
Question 19 
¿Podría la UE indicar si, en caso de que se deba re negociar un acuerdo bilateral de inversión, serán los 
Estados miembros o la Comisión la encargada de las negociaciones?  (página 29, párrafo 44). 
 
Answer 
See answer to question 18 above. 
 WT/TPR/M/248/Add.1 
Page 272  
 
 Question 20 
¿Podría la UE indicar qué acciones se están tomando para mejorar (reducir) los tiempos necesarios 
para completar los procedimientos de importaci ón en los países donde más tiempo se necesita, a 
saber, Bulgaria, Grecia, Eslovaquia, Eslove nia y Polonia?  (página 32, párrafo 5). 
 
Answer 
While the legislation and procedures, includi ng risk management, are already fully harmonized 
within the EU, the time differences between ports va ry particularly due to geog raphical and logistical 
factors, among other factors that cannot be harmoni zed.  Besides, we would like to recall that this 
information has been provided by the OCDE and as  such, the EU cannot det ermine the correctness of 
the information, the data and methodology used and how this analysis was made. 
 Question 21 
¿Podría la UE referirse en forma más amplia a la aplicación de las normas de origen no preferenciales 
en la contratación pública? ¿Se aplica en la UE este tipo de normas para determinar el origen de los 
bienes de un país con el cual tiene un acuerdo bila teral, con un Capítulo de Contratación Pública? 
(página 35, párrafo 17). 
 
Answer 
As regards rules of origin, the EU follows the standar ds set by the GPA on this matter. In that sense, 
for procurement of goods and services committed internationally through its bilateral trade 
agreements, the rules of origin applicable should not be different than those applied "in the normal 
course of trade to imports or supp lies of the same goods or services". 
 Question 22 
Con la entrada en vigencia del nuevo reglamento  del SGP, ¿se mantienen los requisitos especiales que 
aplican para ciertos productos agrícolas, como por ejemplo el presentar el Certificado de Origen para 
la importación de productos agrícolas en la Com unidad Económica Europea?  (página 36, párrafo 21). 
 
Answer 
The EU's special non-preferential arrangements rela ting to agricultural products provide for the 
presentation of the Certificates of Origin.  Such C ertificates shall be issued applying the European 
Union non preferential rules of origin and certify non preferential origin of agricultural products for 
which special non-preferential import ar rangements have been established. 
The entry into force of the new GSP Regulation has no effect to the presentation of the certificates of 
origin relating to agricultural products for wh ich special non-preferential import arrangements have 
been established. 
 
Question 23 
En el nuevo reglamento del SGP se establece que a partir del 2017 un nuevo sistema de auto-
certificación reemplazará el sistema actual de certificación de origen por medio de autoridades. ¿Podría la UE indicar si este nuevo sistema también reemplazará las declaraciones en factura que actualmente puede emitir cualquier exportador (que  no necesariamente está registrado) para envíos 
que no superan los 6000 euros?  (página 37, párrafo 26). 
 
Answer 
Indeed, the new self-certification system will replace th e system of invoice decl arations currently used 
in the GSP rules of origin.  However, also within  the new system any exporter will be entitled to make 
out proofs of origin himself in cases of any co nsignment of one or more packages containing 
originating products, where the total value of th e originating products c onsigned does not exceed 
EUR 6 000.  WT/TPR/M/248/Add.1 
Page 273 
 
 
  Question 24 
Tomando en cuenta lo que se indica en la nota al pie 42 de este documento y considerando la 
importancia de la "predictibilidad" del arancel pa ra el exportador, ¿se discute o ha discutido a lo 
interno de la UE la posibilidad de simplificar lo s aranceles de aquellos productos agrícolas sujetos a 
precio de entrada o sujetos a un arancel estacional?  (página 38, párrafo 31). 
 
Answer 
The entry price system for fruit and vegetables and seasonal duties are bound as part of the UR 
agreement and constitute EU schedule obligations.  
Question 25 En el Grupo de Negociación de Agricultura de  la OMC uno de los temas de discusión es la 
simplificación de aranceles.  En este contexto , la UE presentó una propuesta de simplificación del 
cuadro Meursing. ¿Qué expectativas de simplificac ión de aranceles existen en caso de que este tema 
no se resuelva en la Ronda Doha, así como de los aranceles no ad-valorem  que aplica la UE?  (página 
38, párrafo 31 y página 123, párrafo 31). 
 
Answer 
The tariff lines mentioned are bound in the EU  schedule resulting from the Uruguay Round. 
 Question 26 
Aparte de los derechos ad valorem, la UE aplica va rios derechos no ad valorem, principalmente a los 
productos agrícolas. Sobre esta línea,  la Secretaría utilizó valores un itarios medios para estimar los 
equivalentes ad valorem  (EAV) de los tipos arancelarios no ad-valorem , sin embargo, la Comisión 
expresó reservas con respecto a la metodología utilizada por la Secretaría para estimar los EAV. ¿Está la UE analizando alguna metodología de cálcu lo alternativa?  (página 38, párrafo 32). 
 
Answer 
The calculation of an average duty depends on the methodology used to calculate ad valorem 
equivalents (AVEs) of non-ad valorem duties. Any ca lculation of AVEs has shor tcomings as the result 
can be influenced by several elements, including:   the base period and partners chosen;  commodity 
prices;  exchange rates;  shocks in specific markets;  treatment of mixed tariffs and tariff lines for 
which trade data are not available;  and the extent to which preferential trade is included in the unit 
value calculation. AVEs calculated in the DDA cont ext in conformity with the AVEs guidelines of the 
Paris-Groser methodology (as agreed by WTO Me mbers in 2005) can be consulted on the WTO 
Members' website of the WTO. 
 
Question 27 
¿Podría la UE profundizar sobre las suspensiones y contingentes arancelarios "autónomos"?  Favor 
ampliar sobre los criterios para otorgar este tipo de medidas.  (página 41, párrafos 40-41). 
 
Answer 
The guiding principles for the implementation of  autonomous tariff suspensions and quotas are 
contained in the document mentioned in footnot e 45 of the Report, i.e.  European Commission 
document 98/C 128/02 (OJ C 128/2, 25 April 1998).  The Spanish version of this document can be 
retrieved electronically in the following link:  http://eur-lex.europa.eu/LexUriServ/Le xUriServ.do?uri=OJ:C: 1998:128:0002:0010:es:pdf. 
 
Question 28 ¿Podría la UE explicar las razones por las cuales las importaciones de Islandia, Liechtenstein y 
Noruega no son objeto de medidas antidumping o co mpensatorias? ¿Podrían indicar también la base 
legal que fundamenta la decisión de la UE de exclui r a estos países del ámbito de aplicación de estas 
medidas?  (página 44, párrafo 53).  WT/TPR/M/248/Add.1 
Page 274  
 
 Answer 
The three countries mentioned, i.e. Iceland, Liech tenstein and Norway, under the EEA Agreement are 
obliged to respect and adopt all EU legislation, the "acquis communautaire".  All new relevant Community legislation is dynamic ally incorporated into the Agreement and thus applies throughout 
the EEA, ensuring the homogeneity of the internal market.  This Agreement does not cover fields such 
as agriculture and fisheries, which are co vered by the trade defense instruments  
 Question 29 
¿Podría la UE indicar cuáles son los principales cambios propuestos por la Comisión Europea para 
adaptar las disposiciones sobre derechos anti dumping y compensatorios a la nuevas normas de 
comitología? (páginas 44-45 párrafo 54) 
 
Answer 
Prior to Regulation (EU) No 182/2011 laying dow n the rules and general principles concerning 
mechanisms for control by Member States of the Commission's exercise of implementing powers ('the 
Comitology Regulation'), the Council had the power to adopt implementing acts  (such as the adoption 
of definitive AD and CV measures).  The Comito logy Regulation has shifted the power for adopting 
implementing acts (such as the adoption of definitiv e AD and CV measures) from the Council to the 
European Commission subject to control by the Member States. 
Until the basic anti-dumping and anti-subsidy Regulati ons are aligned to the Comitology Regulation, 
the Council will continue to have the power to adopt  definitive AD and CV measures.  In order to 
align the basic anti-dumping and anti-subsidy Regul ations to the Comitology Regulation, the 
Commission has made a proposal to the European Parliament and Council (the co-legislators) on 
7 March 2011 for a Regulation amending certain re gulations relating to the common commercial 
policy as regards the procedures for the adoptio n of certain measures (COM(2011) 82 final of 
7.3.2011, 2011/0039 (COD)) ("the Omnibus proposal").  The discussions within the co-legislators are 
still at an early phase and therefore it is not yet cl ear when the Omnibus proposal will be adopted. 
This change to the procedures for the adoption of  AD & CV measures came about following the entry 
into force of the Treaty of Lisbon which has c hanged the framework for adoption of implementing 
acts.  The provisions of the Treaty on implementi ng acts, which are set out in Article 291, confer 
implementing powers onto the Commission subject to the control the Member States.  Article 291 of 
the Treaty also required the adoption of a regulation to establish the mechanisms of such control.  In 
order to comply with such a requirement the European Parliament and the Council adopted 
Regulation (EU) No 182/2011 laying down the rul es and general principles concerning mechanisms 
for control by Member States of the Commission' s exercise of implementing powers ('the Comitology 
Regulation'). 
Question 30 
Según los datos aportados en el Informe de la Se cretaría de la OMC, aproximadamente el 12 por 
ciento de las medidas antidumping se mantienen en  vigor durante más de 10 años. ¿Podría la UE 
indicar a cuáles productos y países es que afectan estas medidas antidumping?  (página 45, párrafo 56).  
Answer  
Here below is the list including the products and  countries that are affected by anti-dumping 
measures for over 10 years:  WT/TPR/M/248/Add.1 
Page 275 
 
 
  Cases  Country  
Ammonium nitrate Russia 
Ammonium nitrate Ukraine 
Bicycles P.R. China 
Bicycles (parts) P.R. China 
Coumarin P.R. China 
Ethanolamines USA 
Furfuraldehyde P.R. China 
Lighters (non refillable & refillable) P.R. China 
Lighters (non refillable & refillable) P.R. China 
Polyethylene terephthalate (PET) India 
Polyethylene terephthalate (PET) Indonesia 
Polyethylene terephthalate (PET) Korea (Rep. of) 
Polyethylene terephthalate (PET) Malaysia 
Polyethylene terephthalate (PET) Taiwan 
Polyethylene terephthalate (PET) Thailand 
Polyethylene terephthalate film (PET film) India 
Potassium chloride Belarus 
Potassium chloride Russia 
Powdered activated carbon P.R. China 
Ringbinder mechanisms P.R. China 
Silicon carbide P.R. China 
Silicon metal (silicon) P.R. China 
Steel ropes and cables P.R. China 
Steel ropes and cables Russia 
Steel ropes and cables South Africa 
Steel ropes and cables Ukraine 
Synthetic fibre ropes India 
Tube and pipe fitting, of iron or steel P.R. China 
Tube and pipe fitting, of  iron or steel Thailand 
Tungsten carbide and fused tungsten carbide P.R. China 
Urea ammonium nitrate solutions Algeria 
Urea ammonium nitrate solutions Belarus 
Urea ammonium nitrate solutions Russia 
Urea ammonium nitrate solutions Ukraine 
Tube and pipe fitting, of iron or steel P.R. China 
 
Question 31 
¿Podría la UE explicar las razones por las cu ales las importaciones procedentes de Armenia, 
Azerbaiyán, Belarús, Kazajstán, la República Popu lar Democrática de Corea, Rusia, Tayikistán, 
Turkemistán, Uzbekistán y Viet Nam, no están suje tas al régimen general de salvaguardias de la UE? 
¿Podrían indicar la base legal que fundamenta la deci sión de la UE de excluir del ámbito de aplicación 
de estas medidas y su compatibilidad con las dis posiciones del Acuerdo sobre Salvaguardias de la 
OMC? (página 47, párrafo 62) 
 
Answer 
The countries mentioned in the question are not excluded from the general safeguard regime of the 
EU, but are subject to a separate safeguard regulation (Regulation No. 625/200931), as mentioned in 
                                                      
31 Council Regulation (EC) No. 625/2009 of 7 July 2009 on common rules for imports from certain 
third countries, OJ L 185, 17 July 2009. WT/TPR/M/248/Add.1 
Page 276  
 
 the report.  Those two Regulations are largely comparable, and the latter concerns countries not 
member to the WTO
32. 
 Question 32 
¿Cuáles son los contingentes arancelarios para lo s cuales se otorga licencia?  ¿Se trata de los 
asignados a importadores tradicionales? ¿En qué consis te el examen simultáneo? (página 49, párrafo 
68). 
 
Answer 
In general terms import tariff quotas, other than those administered on a 'first come first served' basis 
(Articles 308a to 308c of Commission Regulation 2454/1993) require the importer to apply for an 
import licence.  "Simultaneous examination" means t hat all applications for a particular quota are 
considered together and, on the condition of valid applications, volumes a re awarded on the basis of  
the available quota volume.  
Question 33 ¿Podría la UE ampliar información en relación con el  procedimiento de evaluación del impacto de un 
reglamento técnico? ¿Qué condiciones deben cu mplirse o qué criterios deben satisfacerse para 
determinar que un reglamento técnico no causa obs táculos innecesarios al comercio? (página 50, 
párrafo 72) 
 
Answer 
Please refer to the impact assessment guidelines adopted by the Commission in January 2009 and 
available at:  http://ec.europa.eu/governance/impact/co mmission_guidelines/commission_guidelines_en.htm 
 
According to the Guidelines, as noted in para. 84 (p. 51) of Chapter III of the Report by the 
Secretariat, impact assessments should include, int er alia, analyzes of the effects of the proposed 
measures or policies on international  trade and on EU's WTO obligations. Please see in particular at 
pages 34, 42 of the Guidelines and Annex 8, Sections 8.7 and 8.8, thereto.  For an overview of the legislati ve initiatives scheduled for adoption at EU level for 2011 and those 
planned for the period 2012-2014 that will under go impact assessment,  please refer to the 
Commission Work Programme 2011 and its Annexes, available at: http://ec.europa.eu/atwork/progr ammes/index_en.htm.  Further details about the planned impact 
assessment work are given in Roadmaps that are regularly updated an d are available on the 
Commission's thematic website on impact assessment , to which general reference is made for 
additional information:  http://ec.eu ropa.eu/governance/impact/index_en.htm. 
 Question 34 
¿En qué consiste la ayuda técnica que presta la UE a los países en desarrollo para ayudarlos a cumplir 
las reglamentaciones técnicas y evaluación de la c onformidad que condicionan el acceso al mercado 
europeo? (página 50, párrafo 72).  Answer 
With regards to Latin American countries, the EU development cooperation activities are carried out, 
at a bilateral level, within the framework of the Regulation (EC) No 1905/2006 of the European 
Parliament and of the Council of 18 December 2006 establishing a financing instrument for 
development cooperation, which main ob jective is the fight against poverty. 
 
                                                      
32 The list of countries needs to be amended concerning Vietnam which is WTO member. WT/TPR/M/248/Add.1 
Page 277 
 
 
  Sub-regional organizations (CAN – Comunidad A ndina de Naciones, Mercosur – Mercado Común 
del Sur as well as SICA –Sistema de Integración de Centroameric a) have benefited the most from 
EU's assistance in the field of technical standards. Cooperation in the field of technical standards has 
included a number of projects, ranging from trade related technical assistance (TRTA), sanitary and 
phyto-sanitary standards to customs cooperation. 
 
Details on the EU's bilateral cooperation w ith Latin American countries and sub-regional 
organizations are spelled out in the Country/Regional  Strategy Papers, which are publicly available 
on the website the European External Action Service (http://eeas.europa.eu/). 
 
Question 35 
¿Cuál es el estatus de las dos preocupaciones comerc iales relacionadas con OTC de la UE, en las que 
Costa Rica es miembro interesado?  (páginas 52-53, párrafo 78). 
 
Answer 
As of 1 June 2009 all Titles of Regulation (E C) No 1907/2006 concerning the Registration, 
Evaluation, Authorization and Restriction of Chemicals (REACH) are fully applicable.  REACH 
provides, however, for different implementation pha ses:  (i) the pre-registration period for phase-in 
substances ended on 1 December 2009;  (ii) the first registration deadline for certain classified substances and phase-in substances in quantities reaching 1000 tonnes or more per year ended on 
1 December 2010.  These registration procedures went smoothly and as the EU had expected.  No 
major difficulties were detected;  (iii) the next registration dead line for phase-in substances in 
quantities of 100 tonnes or more per year will end on 1 June 2013.  On the Commission proposal for a Regulation on no vel foods notified to the TBT Committee in March 
2008 (G/TBT/N/EEC/188), the EU has sent a written reply to WTO members in October 2008.  The 
EU has also provided clarifications as well as  an update on the legislative procedure at every 
occasion that the issue has been raised in the TBT and SPS Committees.   The last time the issue was 
raised in the TBT and in the SPS Committees was in  March and in October 2009, respectively. The 
EU replied that Members' concerns would be taken into account in the on-going discussions in the 
legislative process.  Moreover, in March 2011, an  addendum to the initial notice was communicated 
to keep the WTO members informed of the legislative procedure.  As the final negotiation on the 
revision of the Novel Food Regulation failed in March 2011, the Commission is now examining the 
next steps with respect to the Novel Food Regulation.  Question 36 
¿Cuál es la reacción de la UE a la preocupación most rada por un Miembro en el sentido de que por lo 
general, cuando se remite una notificación las deliberaciones entre los países europeos están muy 
avanzadas como para influenciar el resultado?  (página 56, párrafo 83).  
Answer 
The EU always submits its notifications when the technical regulation or conformity assessment 
procedure is still at a draft stage.  No notified text  has been adopted before the end of the comment 
period given to third countries, which is usually 60 to 90 days.  Legislative discussions with EU 
Member States take place either after or in parallel with the notification.  Comments from WTO Members submitted in the comment period under th e TBT notification procedure are always carefully 
analyzed during the legislative procedure and taken into account before the adoption of the text.  
 
Question 37 ¿En relación con la evaluación del impacto, este se realiza después de la entrada en vigencia un 
reglamento técnico? ¿Podría ampliar la UE como es el procedimiento de evaluación y durante cuánto 
tiempo se realiza la evaluación?  (página 57, párrafo 84). 
 WT/TPR/M/248/Add.1 
Page 278  
 
 Answer 
Impact assessments are prepared for: 
 legislative proposals  which have significant  economic, social and environmental impacts;  
 non-legislative initiatives which define future policies;   
 certain implementing measures adopted by the Commission on the basis of implementing 
powers conferred by means of an EU act which are likely to have significant impacts.  
 
Impact assessments look at the ec onomic, social and environmental im pacts of the proposed measures 
or policies.  Public consultations are carried out very early in the process based on alternative policy 
options and are integral part  of impact assessments.  
For an overview of the legislati ve initiatives scheduled for adoption at EU level for 2011 and those 
planned for the period 2012-2014 that will under go impact assessment,  please refer to the 
Commission Work Programme 2011 and its Annexes, available at: 
http://ec.europa.eu/atwork/progr ammes/index_en.htm.  Further details about the planned impact 
assessment work are given in Roadmaps that are regularly updated an d are available on the 
Commission's thematic website on impact assessment , to which general reference is made for 
additional information:  http://ec.eu ropa.eu/governance/impact/index_en.htm.  
 
For further information on th e impact assessment methodology, please see the reply to Q33. 
 Question 38 
¿Cuáles son los principales cambios en el Nue vo Marco Legislativo (Decisión 768/Reglamento 765) 
con respecto al marco anterior y qué cambios i nvolucra el marco del Ac uerdo Multilateral de 
Reconocimiento del Foro Internaciona l de Acreditación y el Acuerdo de Reconocimiento Mutuo de la 
Cooperación Internacional sobre Acreditación de Labor atorios de Ensayo?  (página 58, párrafo 88). 
 
Answer 
The EU's common accreditation framework is a tool  to support the EU's internal regulatory policy 
and is based on the existing international accreditation framework.  It is not intended to change or 
undermine international cooperation arrangements operated under ILAC (International Laboratory 
Accreditation Cooperation) and IAF (International A ccreditation Forum) and to affect or force 
changes in accreditation practices in other WTO Members.  For additional details, reference is made to the de tailed description of the EU's common accreditation 
framework as provided at  paras 88-94 (pp. 52-54) of the Report by the Secretariat as well as the 
presentation given by an EU expert at the TBT Committee meeting of 24-25 March 2010 (JOB/TBT/2 of 16.4.2010) and the discussions on the EU's comm on accreditation framework that have taken place 
in the TBT Committee since June 2009, as documente d in the meeting minutes prepared by the WTO 
Secretariat.  
Question 39 De acuerdo con lo señalado en el párrafo 101 y su  cuadro III.9 en relación con las preocupaciones 
comerciales planteadas por los Miembros de la OMC sobre medidas aplicadas por la UE, ¿qué acciones está tomando la UE para resolver el problema planteado por Colombia, Ecuador y Perú en marzo del 2006, referido al Reglamento CE 258/97 sobre nuevos alimentos? (páginas 61-62, párrafo 
101 y Cuadro III.9) 
 
Answer 
The EU has continuously kept third countries info rmed on the progress of the novel food negotiation 
and on future measures applicable to traditional foods from third countries.  Concerning the 
problems raised by these three countries, the pr oposal was notified in March 2008 to WTO members 
under the TBT agreement.  The EU received se veral comments both on SPS and TBT issues and WT/TPR/M/248/Add.1 
Page 279 
 
 
  addressed them by a common reply.  Also, severa l Novel Foods from developing countries had 
already been approved for entry into the EU market , which is by far the wo rld's largest importer of 
fruits and vegetables, especially from developing countries.  Question 40 
La propuesta de enmienda del Reglamento sobre nuevos alimentos fracasó en marzo de este año por 
cuestiones referidas a los animales clonados, por lo que afecta el resto de modificaciones que son de mayor interés para países en desarrollo, como la re ferida a facilitar la autorización para la importación 
de estos alimentos.  ¿Qué acciones está tomando la UE para retomar la propuesta de enmienda del 
Reglamento, específicamente sobre el tema de faci litar la autorización para la importación de los 
alimentos nuevos?  (página 62, Cuadro III.9). 
 
Answer 
The EU notes that Novel Food revision remains inconclusive, particularly concerning animal cloning for food production.  It should be noted that th ere was an agreement on a si mplified procedure for the 
placing on the EU market of traditional foods from  third countries but it has not been adopted as well 
as the other parts of the text.  The EU is now exa mining the next steps both with respect to the Novel 
Food Regulation and the follow up to the Commission' s report on cloning in food production, in order 
to benefit from the huge work already done 
The EU has continuously kept third countries info rmed on the progress of the novel food negotiation 
and on future measures applicable to traditional foods from third countries.  As mentioned above, the 
EU is now examining the next steps both with resp ect to the Novel Food Regulation and the follow up  
to the Commission's report on cloning in food production.  Question 41 
En el párrafo 117, se indica que las plantas y los productos vegetales enumerados en la Directiva 2000/29/EC del Consejo (Anexo V, Parte B) debe rán acompañarse de un certificado fitosanitario 
expedido por la autoridad competente  del país exportador, y están sujetos a medidas de control en la 
frontera, incluida la inspección física.  Respecto a las medidas de control en frontera, incluida la 
inspección física, ¿significa entonces que estos producto s están sujetos a controles en las fronteras al 
interior de la UE y por lo tanto no existe libre circulación para ellos?  (página 66, párrafo 117). 
 
Answer 
No, these products are subject to border controls  on the external borders of the EU. Once it is 
concluded in such border controls that these products comply with the phytosanitary import 
requirements of the EU, the products are allowe d entry into and move freely across the EU. 
 
Question 42 según el Acuerdo alcanzado en la Conferencia Minist erial de Hong Kong (párrafo 6)?  (página 70, 
párrafo 133 y página 125, párrafos 38-39). 
 
Answer 
The EU remains committed to the conclusion of the DDA negotiations which should lead to the 
parallel elimination of all form s of export subsidies and discipl ines on all export measures with 
equivalent effect.  Question 43 
¿Abarca la eliminación de las subvenciones a la ex portación pactada para el año 2013 los apoyos a 
créditos para la exportación y sus variables (garantía s, tasas)?  En caso contrario, ¿qué acciones está 
considerando la UE para cumplir con el artículo 10.2 del Acuerdo s obre la Agricultura?  (página 70, 
párrafo 136). 
 WT/TPR/M/248/Add.1 
Page 280  
 
 Answer 
The EU remains committed to the conclusion of the DDA negotiations which should lead to the 
parallel elimination of all forms of export s ubsidies and disciplines on all export measures with  
equivalent effect, as part of a comprehensive,  ambitious and balanced package under the Single 
Undertaking, including domestic support and mar ket access provisions as established in the 
December 2008 draft modalities, but also TRIPS issues, namely GI register and GI extension. 
 Question 44 
Se afirma que siguen existiendo restri cciones a la IED en vari os sectores.  ¿Podría la UE indicar si la 
evolución de la política comercial común contempla la eliminación en el corto o mediano plazo de 
estas restricciones por parte de los Esta dos miembros?  (página 73, párrafo 147). 
 
Answer 
In accordance with Article 64(1) TFEU, Member Stat es may maintain restrictions on FDI, provided 
they existed since 31/12/1993 (31/12/1999 for some Member States).  Member States are also bound 
by international obligations, such as GATS or  the OECD Codes on Liberalization of Capital 
Movements and Current Invisible Operations, whic h may render Member States' provisions 
inapplicable.  Apart from these existing instruments, there is no further  initiative to further eliminate 
these restrictions.  Question 45 
Según la política de examen de la IED de Aleman ia, ¿cuáles son las razones por las que este país 
podría prohibir una transacción? ¿Podría ser solament e en virtud de nacionalidad o las razones de 
seguridad nacional aplican por igual a nacional es y extranjeros?  (página 73, párrafo 148). 
 
Answer 
Pursuant to the German Law (paragraph 7 Außenwir tschaftsgesetz), apart from military-related 
investment, the purchase of resident companies or the acquisition of shares by a EU-non-resident 
purchaser may be only restricted where such a purchase or acquis ition jeopardises the public order 
or security of Germany (as interpreted within the EU freedoms of establishment and the free 
movement of capital).  This requires a genuine and sufficiently serious threat, affecting one of the 
fundamental interests of society, and is to be interpreted narrowly.  
The law applies to third country investment in general.   As it is obvious from the wording, it can only 
be applied where the public order or security of Ge rmany are seriously affected.  Decisions taken 
based on this law are subject to legal review in Germany and by the Court of  Justice of the European 
Union.  
Question 46 ¿Podría la UE indicar si la evolución de la política comercial común contempla la eliminación en el 
corto o mediano plazo de los requisitos de recipr ocidad que mantienen algunos  Estados miembros de 
la UE para la IED?  (página 74, Recuadro III.I). 
 
Answer 
In accordance with Article 64(1) TFEU, Member St ates may maintain restrictions on FDI, which may 
include reciprocity rules, provided they existed since 31/12/1993 (31/12/1 999 for some Member 
States).  The EU and its Member States are also bound by international obligations, such as GATS or the OECD Codes on Liberalisation of Capital Movements and Current Invisible Operations which 
may render Member States' provisions inapplicable.  Apart from these existing instruments, there is 
no further initiative to eliminate these  reciproc ity requirements that comply with EU law and 
international rules.  WT/TPR/M/248/Add.1 
Page 281 
 
 
  Question 47 
¿Están las "directrices horizontal es" aplicables a productos agrícolas –que definen las condiciones que 
deben cumplir los Estados miembros para con ceder determinados tipos de ayudas estatales, 
estructuradas de manera que respetan la normativa de  la OMC sobre ayudas internas a la agricultura o 
más bien están definidas únicamente en torno a pr incipios del derecho comunitario?  (página 81, 
párrafo 163). 
 
Answer 
Due to the fact that most state aids are non-trade  distorting also because of competition rules on the 
internal market, these aids simultaneously respect the criteria of annex 2 of the Agreement on 
Agriculture.  A limited number of state aids non-respecting these criteria is notified as trade 
distorting support, notably insurance premium and interest rate subsidies.  Question 48 
¿Podría la UE señalar explícitamente las demás categorías específicas de ayuda estatal –además de las mencionadas en el párrafo 163, que están regulad as por las "directrices horizontales"?  (página 81, 
párrafo 163). 
 
Answer 
Based on Article 107(3)(a) and (c), horizontal ru les which apply across all industries set out the 
Commission's position on particular categories of aid.  It is apparent that the categories are aimed at 
solving problems that may arise in any industry and country. 
The Commission has issued the guidelines on the following categories of horizontal aid: Aid to disadvantaged and disabled workers, Training aid, Regional aid, Research and Development and 
Innovation, Environmental aid, Risk capital, R escue and restructuring aid, and aid to small and 
medium-sized enterprises.  
 
For more information, please visit:  
http://ec.europa.eu/competition/state _aid/legislation/horizontal.html. 
 Question 49 
¿Podría la UE indicar qué porcentaje de los fondos transferidos como resultado de la aplicación de las 
medidas introducidas por los Estados miembros en el  contexto del Plan Europeo de Recuperación 
Económica fueron destinados al sector agrícola prim ario y al sector agrícola procesado, en 2010? 
(páginas 87 -88, párrafo 185). 
 
Answer 
Between mid-December 2008 and October 2010, th e Commission approved measures and schemes, 
totalling a maximum aid of €82.5 billion.  Out of  the total €1.2 billion was approved for primary 
agricultural production, corresponding to 1.5% of the total amount of approved aid for all sectors. 
 During the period 2010, the EU approved a tota l maximum aid of €407 million for primary 
agricultural production.  So far there is no data available for the entire 2010 regarding the total 
amount of approved aid for all sectors.  
 As concerns processing of agricultural products, there is no specific data. Aid for processing of 
agricultural products is included in the total for all sectors but not in the specific data for primary 
agricultural production.  
 
Question 50 
En el párrafo 197 se hace referencia a los elemen tos introducidos mediante la Directiva 2007/66/CE 
sobre recursos.  ¿Podría la UE referirse en mayor detalle a las normas más estrictas contra la adjudicación directa ilegal de contratos públicos est ablecidas en esta Direc tiva? ¿Ha concluido la WT/TPR/M/248/Add.1 
Page 282  
 
 Comisión la verificación de las medidas de aplicación de esta Directiva que han notificado los Estados 
miembros?  ¿Cuáles fueron las conclusiones de este proceso de verificación? (página 91, párrafo 197) 
 
Answer 
Directive 2007/66/EC seeks to combat illegal direct awards of public contracts, which is the most 
serious infringement of EU procurement law.  National courts will be able to render these public 
contracts ineffective if they have been illegally  awarded without transparency and prior competitive 
tendering.  In these cases the contract will need to be tendered again, this time according to the 
appropriate rules.  National courts may decide t hat these contracts remain in force only if required by 
overriding reasons relating to a general interest.  In  those cases, alternative penalties must be applied 
instead.  These alternative penalties must be effe ctive, proportionate and dissuasive, and may entail 
the shortening of the duration of the contract or the imposition of fines on the contracting authority.  
The European Commission is currently verifying th e implementing measures communicated by the 
Member States.  
 
Question 51 ¿Cuál es el beneficio adicional que considera la UE ex istiría en lograr que sus socios bilaterales, con 
los que ya ha suscrito acuerdos con capítulos sustan ciales sobre contratación pública, se adhieran al 
ACP?  (página 92, párrafo 200). 
 
Answer 
The EU is an advocate of an ambi tious opening of international p ublic procurement markets together 
with the setting up of modern and efficient proc urement systems.  It has done so through the 
conclusion of international procurement agreemen ts such as the WTO Government Procurement 
Agreement and bilateral Free Trade Agreements. 
 
The EU has the aspiration of seeing the GPA beco me a multilateral Agreement. In its bilateral 
agreements, the EU promotes the negotiation of proc urement provisions in accord with the GPA 
standards and disciplines.  Where appropriate, it al so attempts to include commitments by its 
negotiation partners to consider accession to the G PA.  In doing so, the EU contributes to the 
dissemination of the GPA standards among other WTO members not yet Parties to the GPA and to 
incentivising the expansion of the Agreement's membership.  In its b ilateral agreements with Parties 
to the GPA, the EU also seeks to build up from procedural elements already included in the GPA 
and/or broadening the market access commitments.  Question 52 
¿Cuál es la posición de la UE respecto de la cont ratación pública "verde", en especial en el marco de 
las eventuales discusiones sobre la relación entre el ACP y consideraciones sociales?  (página 92, 
párrafo 201). 
 
Answer 
The EU has gained experience with combining green and  social considerations with the principle of 
best value for money.  The EU promotes a policy of  sustainable procurement, which means that public 
authorities seek to achieve the appropriate balan ce between the three pillars of sustainable 
development, the economic, social and environmenta l, when procuring for goods, services or works. 
Therefore, the EU believes that the GPA, as the only legally binding agreement in the WTO focusing 
on procurement shall also address the issue of sustainability and give correct guidance to the contracting authorities how to combine the green an d social considerations without compromising the 
principles of national treatment and non-discrimination.  
 WT/TPR/M/248/Add.1 
Page 283 
 
 
  Question 53 
¿Podría la UE indicar cuáles son las razones, en su opinión, por las que solo el 5 por ciento del 
presupuesto total de contratación en la UE se realice a través de sistemas electrónicos?  ¿Podría la UE 
referirse en mayor detalle al Libro Verde sobre la  generalización del recurso a la contratación pública 
electrónica en la UE? ¿Cuál es el alcance del Libr o Verde y cuáles han sido los principales resultados 
obtenidos con su emisión? (páginas 92-93, párrafo 202). 
 
Answer 
The 5% share is the overall aggregate figure for pr ocedures above the EU threshold, comprising all 
Member States, all types of contracting authorities and of purchases.  The main challenges that slow 
down the switchover to fully fledged electronic proce dures (especially as concerns e-submissions) are 
the complexity of change (the back-office busin ess processes), sometimes a resistance to change and a 
need for more training and also the complex legal  and technical requirements that are needed to 
ensure full cross-border access to procedure systems.  
It shall be noted that the uptake is very high in some first-mover Member St ates.  For example, the 
proportion of procurement contracted electronically  in Portugal is 90% (use of e-tendering is 
obligatory for most procurement), for Lithuania it is 60%.  Also, many Member States authorities 
have rendered electronic some procedural stages but not (yet) all.  Thus rates for e-Notification and 
e-Access are much higher (example:  central online publication of a ll notices under EU legislation on 
TED www.ted.europa.eu).  Finally, there is a growing trend towards centra lisation of purchasing (centralized purchasing 
bodies).  Many of the centralized purchasing bodies op erate sophisticated e-procurement facilities.  In 
a recent survey, the Commission iden tified 230 e-procurement portals and platforms offering varying 
degrees of functionality.  Given the increased avai lability of e-procurement capacity and growing 
experience of suppliers and public purchasers with these systems, there are st rong reasons to expect 
an increase in the volume of the electroni c public procurement in the coming years. 
The main schemes to expand the use of  e-procurement are the following: 
- The legislative proposals modifying the exis ting e-procurement rules as part of the 
modernisation of the general EU  public procurement framework (planned for the end of 2011) 
- A non-legislative strategy document on e-procurem ent (expected early 2012) that will launch 
initiatives to promote best practice and facilitate replication of best of breed solutions. 
- In addition, several pilot projects are curre ntly on-going (for example, PEPPOL, ePRIOR…) 
that are expected to provide building blocks for cross-border e-procurement data exchange 
and provide standard solutions for some e-procurement processes. 
 
Question 54 
¿Podría la UE referirse en mayor detalle y dar algunos ejemplos de consideraciones sociales y ambientales aplicadas en las contrataciones públicas cubiertas por la normativa comunitaria? (página 
93, párrafo 203). 
 
Answer 
The EU has a longstanding experience with Gree n Public Procurement (GPP). The GPP is a 
voluntary policy, the Member States and contractin g authorities can determine to which extent they 
implement it.  The basic concept of GPP relies on having clear, verifiable, justifiable and ambitious 
environmental criteria for products and services, based on a life-cycle approach and scientific evidence base.  To this end the EU has published a "B uying Green" Guide, which is a step by step by 
step guide for contracting authorities wishing to "green" their procurement.  Additionally, the EU 
provides contracting authorities with a "Toolkit" on G PP that contains the permitted criteria that they 
can use while procuring in a specific sector: fo r example: procurements of copying and graphic 
paper, IT equipment, catering services and others.  The toolkit is accessible electronically on the 
following website:  http://ec.europa. eu/environment/gpp/gpp_criteria_en.htm. WT/TPR/M/248/Add.1 
Page 284  
 
 As regards the domain of socially responsible proc urement, the definition of this domain and criteria 
that are permitted under the EU procurement ru les are to be found in the Interpretative 
Communication on Integrating Social Considerations in Public Procurement.  Additional examples 
and suggestions are detailed in the "Buying Social" guide.  Both documents are available under: http://ec.europa.eu/internal marke t/publicprocurement/index_en.htm. 
 
Question 55 
¿Podría la UE brindar mayor información sobre el fu turo examen del régimen de contratación pública 
anunciado por la Comisión en el 2010? ¿En qué form a se piensa simplificar los procedimientos de 
contratación y promover una mayor penetración de  empresas de otros Estados miembros? ¿Esta 
simplificación de procedimientos beneficiaría  también a proveedores extranjeros de países no 
miembros de la UE?  (páginas 94-95, párrafo 209). 
 
Answer 
The main objectives of the reform are threefold.  First, the EU is looking at possible ways to make 
procedures easier and more flexible, su ch as allowing for a wider use of negotiated procedures.  This 
simplification should be achieved while ensuring that  the EU international commitments are fully 
complied with.  Second, better access to contract  opportunities for all economic operators should be 
ensured: reducing the administrative burden for undertakings could boost participation of all 
economic operators, in particular for the benefit of SMEs.  Third, the reform should also include the 
question of whether fighting against corruption and favouritism requires more specific legal 
instruments than what is currently set out in the EU public procurement rules.  
The European Commission is currently preparing a dr aft proposal to be adopt ed by the end of the 
year, and to be submitted subsequently to  the Council and the European Parliament. 
 Question 56 
¿Podría la UE referirse en mayor detalle al "e nfoque más económico" adopt ado por las autoridades 
competentes en materia de política de competencia y explicar en qué forma ha contribuido este enfoque a una mayor armonización de las políticas de competencia de los interlocutores económicos y a la reducción de los conflictos de jurisdicción con esos interlocutores? (página 95, párrafo 211) 
 
Answer 
The EU has in recent years opted for a "more econom ic approach" in the field of competition law in 
search of more harmony between the current rules of European competition law and insights from 
economic theory.  Several formalistic legal rules have been replaced by new rules focussing on the 
economic effects in Antitrust (including cartel agree ments), State Aid and Mergers.  For instance, the 
revision of the Merger Regulation has led to a cha nge of the substantive test which better allows 
relevant economic distinctions, such  as that between coordinated ef fects and non-coordinated effects. 
Guidelines have articulated relevant criteria to assess both non-coordinated effects (e.g. market 
shares as ‘first indicators' of dominance, closen ess of competitors, limited possibilities of switching 
suppliers) and coordinated effects (reaching terms of coordination, monitoring deviations, deterrent 
mechanisms).  Also in Antitrust there has been an evolution towards a full-blown analysis of the 
relevant data on the basis of economic theory whils t at the same time assuring companies with the 
required level of legal certainty.  
Question 57 
¿Podría la UE indicar por qué motivos no es aplicab le el artículo 101 del Trat ado de Funcionamiento 
de la UE a los sectores de seguros y de vehículos automóviles?  ¿Qué normativa sobre competencia es 
aplicable a tales sectores?  (página 95, párrafo 213). 
 WT/TPR/M/248/Add.1 
Page 285 
 
 
  Answer 
In general, Art 101 TFEU equally applies to th e insurance sector and to the automobile sector. 
However, the prohibition of anticompetitive arra ngements set forth in Article 101(1) TFEU is 
declared inapplicable to certain specific categorie s of agreements between companies.  For the 
insurance sector such block exemption is granted for the joint realisation of compilations, tables and  
studies and co-(re)insurance pools. Such a block exe mption regulation for the insurance sector had 
already been adopted in 1992 and was replaced  in 2003.  A new block exemption regulation 
(Regulation 267/2010) which came into force on 1 April 2010 extends, with some amendments, the 
exemption granted to forms of specific cooperation wh ich the EU considers indispensable in order for 
the insurance sector to carry out its business, including certain forms of exchange of information 
between insurers.  The motor vehic le block exemption also provides such a necessary safe harbour by 
exempting a whole category of motor vehicle distri bution and repair agreements  from the prohibition 
laid down in Article 101(1).  For both block exemption regulations, several conditions have to be 
complied with in order to apply the new regulation to  such agreements, the most important being that 
Agreements can only benefit from the block exempti on so long as they do not contain any serious 
restrictions of competition and meet the oth er conditions laid down by the Regulation. 
 Question 58 
¿Podría la UE referirse en mayor detalle al funci onamiento de la Red Europea de Competencia? En 
caso que las autoridades competentes de los Estados  Miembro no logren ponerse de acuerdo sobre la 
asignación de un caso específico, ¿quién y cómo se re suelven tales discrepancias? ¿Es posible que un 
caso termine siendo conocido por más de una autori dad de competencia?  (páginas 96-97, párrafo 
217). 
 
Answer 
The European Competition Network (ECN) bri ngs together the Commission and the competition 
authorities of the Member States with the aim of fostering a common culture in the application of the 
rules.  Apart from the formal cooperation mechanisms laid down in Regulation 1/2003 (http://ec.europa.eu/competition/antitrust/legislati on/regulations.html) and the Commission's Network 
Notice: (http://ec.europa.eu/competition/antitrust/le gislation/network.html), there are informal 
cooperation opportunities such as working groups and sectorial subgroups.  The national competition 
authorities (NCAs) are obliged to consult the Commission on case decisi ons they envisage to take.  
The NCAs also inform the Commission as well as th e other NCAs about their on-going investigations 
through an interactive database.  The work-sharing arrangement within the ECN, i.e. the system of 
parallel competences and flexible case -allocation rules, means that any  "well-placed" authority can 
take action in a case.  Indicative, non-binding principles are set out in the Network Notice (see above), which explain when a Network member is well-placed to act.  
As to competence disputes, it is to be noted that pu rsuant to Article 11(6) of Regulation No 1/2003, an 
initiation of proceedings under Articles 101/102 of th e Treaty on the Functioning of the European 
Union relieves the competition authorities of the Member States of their competence on the same 
case.  If a competition authority of a member Stat e is already acting on a case, the Commission shall 
only initiate proceedings after consulting with that NCA.  For further informa tion, please see also the 
Report on Regulation 1 (COM (2009) 206 final, 29.4.2009) which is available here:  
http://ec.europa.eu/competition/antitrus t/legislation/regulations.html. 
 
Question 59 
Tras la investigación realizada por la UE en 2008 para indagar sobre la comercialización de menos 
medicamentos nuevos y la demora en la entrada de  genéricos, ¿se impuso alguna sanción o multa a la 
industria farmacéutica por incurrir en este ti po de prácticas?  (páginas 98-99, párrafo 224). 
 
Answer 
The 2008 inquiry found that in some cases cheaper ge neric drugs were unduly kept  out or delayed into 
the market and that this originates to some ex tent from company behaviour, including the use of WT/TPR/M/248/Add.1 
Page 286  
 
 certain patent application and enforcement strategies,  patent settlements aimi ng at the restriction of 
generic market entry as well as interventions in  marketing authorization procedures concerning 
generic medicines.  Such behaviour is subject to  competition scrutiny if used in an anti-competitive 
way, which may constitute an infringement under Ar ticle 101 or 102 TFEU.  Also, to reduce the risk 
that settlements between originator and generi c companies are concluded at the expense of 
consumers, the Commission has carried out further focused monitoring of settlements that limit or 
delay the market entry of generic drugs.  In that  respect, the Commission has two open investigations 
with respect to patent settlements relating to Servier (see MEMO/09/322) and Lundbeck (IP/10/8). 
 
Question 60 
¿Mantendrá la PAC 2013 programas de sostenimiento de precios y, en caso afirmativo, para qué 
productos? (página 121, párrafo 20)  
Answer 
EU proposals on the shape of the CAP after 2013 a re due to be presented in the second semester of 
2011.  However the cornerstone of the CAP will conti nue to consist of decoupled direct aids.  For 
information concerning the shape of the future po licy, please refer to the Communication of the 
European Commission "The CAP towards 2020:  Mee ting the food, natural resources and territorial 
challenges of the future" which was published in November 2010. 
 Question 61 
¿En el caso de los contingentes negociados en el marco de acuerdos comerciales bilaterales, qué 
método(s) utiliza la UE para administrar los mismos? (páginas 124 y 125, párrafo 35). 
 
Answer 
In accordance with Article 144 of Council Regula tion No. 1234/2007, the Commission determines the 
most appropriate method for administering a quota so as to avoid any discrimination between 
operators and giving due weight to the supply requirements of the EU market and the need to 
safeguard the equilibrium of that market.  For the management methods applied to quotas we would 
like to refer Costa Rica to EU notifications concern ing imports under tariff quotas (table MA:2), in 
particular to the footnote marked with an asterisk (last notificatio n G/AG/N/EEC/67 of 
18 January 2011 covering the marketing year 2008/09 and the calendar year 2009).  
 
Question 62 
¿Cuáles son los criterios para opt ar por uno u otro método de asignaci ón de contingentes? ¿Cuáles son 
los métodos aplicados para cada uno de los productos para los cuales la UE otorga contingentes? 
(páginas 124 y 125, párrafo 35). 
 
Answer 
Please refer to the reply to question 61. 
 Question 63 
En el caso de asignación a importadores tradiciona les, ¿cómo se determin a que un importador es 
tradicional? ¿Se otorga algún porcentaje a nue vos importadores? ¿Cuánto tarda el proceso de 
asignación? ¿Cuáles son los requisitos a cumplir? ¿C ómo se controla el monto a importar bajo 
contingente? (páginas 124 y 125, párrafo 35).  
Answer 
This method of quota administration is ra rely used.  Please see Commission Regulation (EC) 
341/2007 covering imports of garlic and Commissi on Regulation (EC) 1979/2006 on preserved 
mushrooms as two examples. The information reque sted can be found in the Regulations concerned.  
 WT/TPR/M/248/Add.1 
Page 287 
 
 
  Question 64 
¿Qué requisitos deben cumplirse en caso de optar  por un contingente asignado bajo la modalidad 
primer llegado, primer servido? (páginas 124 y 125, párrafo 35).  
Answer 
The nature of the requirement depends on the quota in  question.  The information requested can be 
found in respective Regulations.  Question 65 
¿Cuáles son los requisitos para optar por un cont ingente en virtud de concesión de licencias en 
función de la demanda?  (páginas 124 y 125, párrafo 35). 
 
Answer 
The nature of the requirement depends on the quota in  question.  The information requested can be 
found in respective Regulations. 
 
Question 66 
¿Al momento de importación de un producto bajo contingente, verifica la UE que exista algún 
documento emitido por el país exportador o solame nte se verifica la asignación realizada en la UE? 
¿Están asociados los contingentes a alguna autorizaci ón por parte del país exportador en el caso de 
Tratados bilaterales?  (páginas 124 y 125, párrafo 35). 
 
Answer 
The nature of requirement depends on the quota in question and the arrangements agreed between the 
exporting country and the EU.  Some quotas require the importer to provide an export document 
issued by the country in question. 
 
Question 67 
¿Cuáles son los productos comprendidos en los 20 contingentes no utilizados? ¿Cuáles son las 
razones que podrían estar influyendo en su no utilización?  (página 125, párrafo 36). 
 
Answer 
The notification information quoted in paragraph 36 of the WTO Secretariat's report for the EU TPR 
is based on the EU notification concerning imports under tariff quotas (table MA:2) covering 
marketing year 2008/2009 and the calendar yea r 2009- WTO document G/AG/N/EEC/67 of 
18 January 2011.  
The reasons for a low fill rate for certain quotas a re linked to market conditions, such as sufficient 
supply of the products at competitive prices on the internal market.  The administration method of the quotas has no impact on the quota fill. 
 
Question 68 
Sobre las notificaciones de ayudas internas a la agri cultura se indica en el reporte que el último año 
notificado a la OMC corresponde a la campaña de  comercialización 2007-20 08.  ¿Cuáles son las 
razones del retraso en este tipo de notificaciones, da da la importancia del principio de transparencia 
en la OMC? (página 126, párrafo 40). 
 
Answer 
Data collection for the year 2008/09 is on-going, we expect publication during 2011. Data collection for the year 2009/10 will be initiated during 2011.   WT/TPR/M/248/Add.1 
Page 288  
 
 Question 69 
¿Podrían proporcionar los precios administrados para  los años 2007 al 2009, período en el cual se dio 
un alza considerable en los precios internacionales de todos los productos agrícolas? (página 126,  
párrafo 40)  Answer 
Please refer to the information below: 
 
 administered administered administered 
 price price price 
 2007/08 2008/09 2009/10 
 €/t €/t €/t 
cereals 101,31 101,31 101,31 
rice 150,00 150,00 150,00 
white sugar 433,12 323,52 323,52 
skimmed milk powder 1.698,00 1.698,00 1.698,00 
butter 2.217,51 2.217,51 2.217,51 
beef 1.560,00 1.560,00 1.560,00 
 
Question 70 
¿Cuándo tiene la Comisión estimado que  elaborará planes concretos de lib eralización para los tipos de 
servicios excluidos de la "Directiva sobre los servi cios" adoptada en diciembre del año 2006? (página 
132, párrafo 50)  
Answer 
As a preliminary answer, it is important to clarify  that exclusions from the scope of the Services 
Directive do not make these "excluded" sectors and servic es immune to the application of Articles 49 
(the freedom of establishment) and 56 (the freedom  to provide services) of the TFEU.  Thus, as long 
as they are services for the purposes of Article 57 TFEU, they may be subject to the rules on freedom 
of establishment and freedom to provide services und er Articles 49 and 56 TFEU, as the case may be.  
 Furthermore, most of the sectors have been exclude d from the scope of the Service Directive because 
they were/are already covered by specific pieces of EU legislation regulating these service activities. 
This is notably the case for:  Financial services;   Electronic communications services and networks; 
Services in the field of transport;  Services of temporary work agencies;  Healthcare services; Audio-visual services and radio broadcasting.  Assessing the need for new se ctors to be specifically regulated is a constant process in the EU. As a 
consequence, for instance, hea lthcare services or cash-in transit activities that were excluded from 
the Services directive and were at th e time covered by Treaty prin ciples mainly have since been 
regulated (for healthcare) or are in the process of  being specifically regulated via a particular EU 
legal instrument. 
 
It is recalled that, as such, all services activities are covered by the Treaty and its general principles 
(such as transparency, proportionality) and the very la rge majority is also covered by specific EU 
instruments (Services directive,  Professional Qualifications directive or other sector-specific 
instruments)  Question 71 
¿En qué estado se encuentra el Plan de Acción sobr e Servicios Financieros (PASF), cuyo objetivo es 
crear un mercado único para los servicios financiero s en la UE? ¿Se vislumbra en el mediano plazo un 
mercado único para este sector particular  de servicios? (página 134, párrafo 54) 
 WT/TPR/M/248/Add.1 
Page 289 
 
 
  Answer 
The Financial Services Action Plan is the name given  to a programme of EU legislation enacted 
between 1999 and 2004 to improve and complete the EU internal market in Financial Services. 
Legislation is still being enacted to continuously improve and furt her refine the internal market in 
financial services, but the term "Financial Services Acti on Plan" is no longer used.  While an internal 
market has long existed for core financial services su ch as banking and insurance, for certain other  
less fundamental financial activities a full internal market, including "passporting" rights (i.e. the right for an entity authorized in one EU Member State under EU harmonized rules to provide its 
services in any other EU Member State), has not yet been fully established, but these gaps are 
continuously being eliminated.  One recent example  is the Directive on Alternative Investment Fund 
Managers, which, for the first time creates a single EU-wide passport for alternative investment fund 
managers (hedge fund and private equity managers).  Another example, scheduled to be proposed 
later this year, is a draft directive creati ng an EU passport for venture capital funds.  
 
Question 72 
En la nota al pie de página número 37, de la  página 135, se establece que las sucursales de 
instituciones de crédito de países que no son mi embros de la UE estarán sujetas a las normas 
nacionales a falta de un marco armonizado de la UE, y que por esa razón es posible que esas 
sucursales "directas" no puedan beneficiarse del "pasapor te único", es decir, prestar servicios en otros 
Estados miembros de la UE, aparte de aquel en el que se encuentra la sucursal. ¿Podría la UE explicar 
si se pretende tener un marco armonizado en el mediano plazo, y cuáles son las naciones cuya legislación nacional restringe la prestación de servicios  en otros Estados miembr os de la UE? (páginas 
134-135, párrafo 54) 
 
Answer 
As described in the Secretariat's report, non-EU credit institutions may avail themselves of the "single 
passport" provided they establish a subsidiary in an EU Member State.  That is to say that subsidiary 
may subsequently provide services cross-border within  the EU or open branches in other EU Member 
States, under the supervision of th e regulatory authority of the home  country of the subsidiary.  The 
"single passport" is provided because establishmen t via "subsidiarization" triggers full application of 
the EU harmonized rules in the home country of the subsidiary.  
Non-EU credit institutions may also provide financia l services through branches in the EU under EU 
Member States' national rules and supervision in the absence of a harmonized EU framework on 
branching.  Such "direct" branches ma y not benefit from the "single passport" to provide services in 
other EU Member States than the one in which the branch is located.  That is to say, direct branching 
by a non-EU credit institution in one EU Member State (Member State A) will not imply a right 
("single passport") to provide services into another Member State (Member State B).  To provide its 
services in the Member State B, the credit institution will have to comp ly with that Member State's 
rules on branching.  There is no "single passport" for branching because, in the absence of harmonized EU rules on branching, branching is subject to different national legislation of the EU 
Member States with potentially lighter requirements/exem ptions than for subsidiaries (which are fully 
subject to EU harmonized rules). 
There are no plans to change the poli cy on branching in the medium-term.  
 
Question 73 
¿Por qué razón para el comercio transfronterizo de servicios de seguros y reaseguros no se cuenta 
también con regulaciones armonizadas en lo que r especta al modo 1?  (página 136, párrafo 59). 
 WT/TPR/M/248/Add.1 
Page 290  
 
 Answer 
As regards Mode 1, it has not proved possible to have harmonized provisions in the EU given that it 
concerns Third-Country Insurers without a comm ercial presence in the EU, and thus falling 
completely outside any supervision by Member States' authorities.   
In the absence of an agreement with a third-country the regulation of the Mode 1 supply of direct 
insurance and reinsurance consequently remains a ma tter for each Member Stat e, in accordance with 
their WTO obligations.  Question 74 
¿Podría la UE decirnos con base en qué criterios  están estableciendo zonas de aviación abiertas con 
países no miembros de la UE como Canadá, Brasil,  Australia y Chile, entre otros?  (página 148, 
párrafo 92). 
 
Answer 
The external aviation policy of the EU is underpinne d by a desire to move to wards greater flexibility, 
openness and consistency in the area of interna tional civil aviation, developed through agreements 
not only between Member States and third countri es but wherever appropriate between the Union and 
third countries, on the basis of a double and indivisible agenda aimed at:  
 creating new economic opportunities by ope ning up markets and promoting investment 
opportunities as far as possible;  
 ensuring fair competition, i.e. promoting regul atory convergence, be it with regard to the 
economic conditions governing the operation of the markets (implementation of competition 
regulations, State subsidies or standards more sp ecifically linked to avia tion such as reservation 
systems, ground handling, etc.) or to social, en vironmental, security and safety reliability.  
 Each and every agreement that might be proposed woul d need to be modelled on a case-by-case basis 
in order to satisfy, in a suitable manner, the mut ual interests of the parties and generate added value. 
 The basis for our policy can be found in the 2005 communication from the Commission "Developing 
the agenda for the Community's external aviation policy", and some subsequent region or country 
specific communications, all of  which can be found at: 
http://ec.europa.eu/transport/air/international_avi ation/external_aviation_policy/why_policy_en.htm. 
 Question 75 
En materia de servicios de telecomunicaciones, la armonización entre la directiva marco y las 
directivas específicas de la UE con las legislaciones nacionales de los 27 países de la Unión debería haber estado completa en mayo de 2011. ¿Cuál es el estado de este proceso? (página 149, párrafo 96) 
 
Answer 
EU Member States had to notify the measures tr ansposing the revised regulatory framework into 
national law to the European Commission by 25 Ma y 2011.  While all Member States are working on 
transposition and a majority of them have notified me asures to the Commission, only a minority of 
them have notified full transposition measures so far.  The Commission monitors the transposition 
process closely, and will take legal action against Member States if appropriate.  WT/TPR/M/248/Add.1 
Page 291 
 
 
  COLOMBIA 
 
Informe de la Secretaría WT/TPR/S/248 
 
II. POLÍTICAS Y PRÁCTICA COMERCIALES, POR MEDIDAS 
(1) M EDIDAS QUE AFECTAN DIRECTAMENTE A LAS IMPORTACIONES  
(i) Procedimientos aduaneros 
De acuerdo al párrafo 7 del informe de la Secretaría  indica que…  "En el período objeto de examen, la 
UE estableció requisitos de información anticipada s obre la carga en el marco de las denominadas 
"modificaciones de protección y seguridad" del Códi go aduanero.  Desde 2011, los transportistas 
deben presentar una declaración sumaria de entrada electrónica (ENS) en la "primera Aduana de 
llegada" de la UE.  No obstante, en el artíc ulo 181c del Reglamento  de aplicación del Código 
aduanero se prevén varias excepciones.  Además, la ENS no se exige para las importaciones abarcadas por un acuerdo sobre seguridad entre la UE  y otro país.  Se han firmado acuerdos de este 
tipo con Noruega y Suiza -el acuerdo con Suiza ab arca a Liechtenstein- y se ha negociado un acuerdo 
con Andorra, cuya entrada en vigor está prevista para 2011…" 
 1. ¿La UE menciona la existenc ia de Acuerdos de Seguridad de  la UE con otros países, podrían 
aclararnos cuáles son los requerimientos exigidos para acceder a este tipo de Acuerdos y Qué beneficios se han registrado?  Answer 
Given the particular nature of the ties between the European Union and Switzerland, Norway and 
Andorra (such as the special geographical situati on, the specific arrangements and tight relations as 
well as the high volume of bilateral trade), the ex isting agreements in the customs area between those 
countries and the EU have been extended so as to include customs security measures.  The amended 
agreements waive the obligation for traders to prov ide customs with advance electronic information 
for security purposes in bilateral trade between the EU  and each of those countries.  This extension is 
subject to the condition that in trade with third countries, Switzerland, Norway and Andorra 
implement customs security measures that are equiva lent to those applicable in  the EU (in particular 
measures concerning advance security data, risk management and AEO security).  As these security arrangements are linked  to the special relationship it has with the said countries, the 
EU does not intend to replicate these ag reements with any other third country. 
 
Según el párrafo 11 del informe de la Secretaría indica que…"la participación en los programas de 
operadores económicos autorizados de la UE no está abierta a las personas establecidas fuera de la 
UE, a menos que el operador económico esté establec ido en un país que haya concertado un acuerdo 
de reconocimiento mutuo con la UE .  Existe un acuerdo de este tipo con el Japón.  Las líneas aéreas y 
las empresas de transporte no establecidas en la UE que tengan una oficina regional en la UE y que se 
beneficien de ciertas medidas de simplificación de  los procedimientos aduaneros en el marco del 
Reglamento de aplicación del Código aduanero ta mbién pueden solicitar la condición de operador 
autorizado.  Las solicitudes deben presentarse al  Estado miembro "que te nga un conocimiento más 
exacto de las actividades aduaneras del solicitante" .  La condición de opera dor económico autorizado 
otorgada por un Estado miembro de be ser reconocida por las autoridades aduaneras de todos los 
demás Estados miembros  2. ¿Cuáles son los requisitos exigidos por La Unión Europea para poder concertar un acuerdo de 
reconocimiento mutuo? 
 
Answer 
For mutual recognition of AEO programmes to work , it is necessary that the other country has an 
operational AEO programme.  The AEO programmes s hould be compatible and leading to equivalent WT/TPR/M/248/Add.1 
Page 292  
 
 results.  This means that the respective AEO legisl ations should be compa tible, as well as the 
practical implementation thereof.  In addition, matters such as benefits awarded to AEOs under 
mutual recognition, the protection of personal dat a and IT solutions to exchange AEO information 
need to be resolved.  The EU has opted to impl ement the EU AEO programme in line with the WCO 
SAFE Framework of Standards to secure and fac ilitate global trade which should facilitate 
international mutual recognition of AEO programmes.  
(ix) Normas sanitarias y fitosanitarias 
En la página 62 en el Cuadro III.9 Preocupaciones comerciales específicas re lativas a MSF de la UE, 
octubre de 2008 a enero de 2011
a… "en el tema de Medidas Sanitarias y Fitosanitarias (MSF), se 
ilustra un cuadro que enumera el estado de l as Preocupaciones Comerciales relativas a MSF 
realizadas a la UE. En dicho cuadro  se cita que Ecuador, Perú y Colombia realizaron observaciones al 
Reglamento sobre Nuevos Alimentos (documento base más reciente: G/SPS/R/56) y que la UE no lo 
ha notificado.  
 
3. ¿Podría La Unión Europea suministrar informac ión detallada sobre el análisis realizado que 
ha conducido a no realizar aún la notificación de dicha legislación? 
 
Answer 
The mentioned case concerning Ecuador, Peru an d Colombia was raised in the SPS Committee 
meeting on 29 March 2006, and the EU published a reply in its communication to the WTO 
G/SPS/GEN/699 (8 June 2006).  A full explanation of the EU views on the trade concern can be found 
there:  "The European Union believes the scope of this legislation falls mostly within the scope of the 
WTO Agreement on Technical Barriers to Trade (the TBT Agreement) [...]".  
 As a matter of fact, the draft proposal related  to the novel food has been notified to the TBT 
Agreement in document G/TBT/N/EEC/188 on 14/03/2008 , with a period of 90 days for comments.  
An addendum to the notice was sent on 7 March 2011 to keep the WTO members informed of the 
legislative procedure.  
En el párrafo 106 del informe de la Secretar ía indica que…"la Legislación Alimentaria General 
permite el establecimiento de medidas provisiona les cuando se observe la posibilidad de que haya 
efectos nocivos para la salud, pero siga exis tiendo incertidumbre científica.  Las medidas serán 
proporcionadas y no restringirán el comercio más de lo requerido para alcanzar el nivel elevado de 
protección de la salud en la UE y se revi sarán en un plazo de tiempo razonable" 
 4. ¿Nos gustaría que la UE citara ejemplos de la aplicación de ésta legislación, con el fin de 
entender en detalle cómo se aplica esta reglamentación sin menoscabar el comercio de forma 
injustificada?  
Answer 
No such measures have been adopted  since the last Review of the EU, therefore, there are no 
examples to mention. 
 
En la página 66 del informe de la Secretaría i ndica que…"ciertos productos de origen animal están 
sujetos a condiciones especiales de importación, que  consisten principalmente  en la realización de 
pruebas a la totalidad de los envíos de importaci ón o pruebas previas a la exportación y certificación.  
Esas medidas afectan a nueve Miembros de la OMC y se refieren a productos de la pesca, carne de 
caballo y de conejo, aves de corral, huevos y sus prod uctos, miel y leche en polvo (julio de 2010)". 
 5. ¿Podría la UE dar información sobre el tie mpo que toma el realizar dichas pruebas y 
enumerar y detallar los procesos y sus métodos de verificación aplicados, y explicar por qué dichas WT/TPR/M/248/Add.1 
Page 293 
 
 
  pruebas son compatibles con el Anexo C (Procedim ientos de Control, inspección y aprobación) del 
Acuerdo MSF de la OMC? 
 
Answer 
In the following web page it is published the special import controls which have to be carried out for 
certain food and feed from animal origin whic h is deriving from certain Third Countries: 
http://ec.europa.eu/food/animal/bips/special_imports_en.htm.  This page refers to a list of safeguard decisions for specific products origina ting from specific third 
countries.  These decisions enforce the necessary pr otective measures to be taken as regards the 
import of certain products from third countries wh ere any cause likely to constitute a serious risk to 
animal or human health appears or is spreading.  The legislation states that it shall be reviewed in the 
light of information provided by the competent aut horities of the relevant third countries, any results 
from the increased monitoring and testing carried out by the EU Member States on consignments 
arriving at the Community border inspection posts a nd, if necessary, on the basis of the results of a 
new inspection visit carried out on the spot by the experts of the Commiss ion.  The information 
provided by the competent authorities, the out come of the additional inspection visit and the 
favourable results of the checks carried out by Memb er States are taken into account to normalise the 
situation as soon as possible.  This process is completely tr ansparent, taken in collaboration with the third country authorities 
involved and the requirements of Annex C (such as no undue delays, non- discrimination, limitation to 
what is necessary, respect of c onfidentiality, use of same criteria as for domestic products and the use 
of international standards when possibl e) are respected in the procedure. 
It is not possible to give an estimation of the time ta ken for the individual tests.  The timeframe would 
depend of the method and the substances involved. 
 
The methods used must comply with the crit eria laid down in Commission Decision 2002/657/EC 
"Commission Decision of 12 August 2002 implementing Council Directive 96/23/EC concerning the performance of analytical methods and the interp retation of results" [OJ L 221 17/08/2002 p. 8–36]  
English:   http://eur-lex.europa.eu/LexUriServ/LexU riServ.do?uri=OJ:L:2002: 221:0008:0036:en:pdf. 
Spanish:  
http://eur-lex.europa.eu/LexUriServ/Le xUriServ.do?uri=OJ:L: 2002:221:0008:0036:es:pdf. 
 
III. EVOLUCIÓN DE DETERMINADOS SECTORES 
(1) 
AGRICULTURA  
(i) La agricultura en la Unión Europea 
Políticas agrícolas 
 
Según el párrafo 8 del informe de la Secretaría i ndica que…"desde 2007, las políticas agrícolas de la 
UE se han financiado por medio del Fondo Europeo Agrícola de Garantía (FEAGA) y el Fondo 
Europeo Agrícola de Desarrollo Rural (FEADER).  El FEAGA financia los pagos directos a los 
agricultores y las medidas de intervención en el mercado (primer pilar de la PAC).  El FEADER 
financia los programas de desarrollo rural (segundo pila r de la PAC), lo cual comprende la asistencia 
a zonas desfavorecidas, las ayudas a la inversión en la  agricultura y la silvicultura, y los pagos en el 
marco de programas ambientales".  
6. ¿Podría La Unión Europea ampliar la exp licación sobre cómo se aplican las medidas de 
intervención para productos como arroz, arroz pa ddy, trigo, leche, carne de bovino y azúcar? 
 WT/TPR/M/248/Add.1 
Page 294  
 
 Answer 
Support under the first pillar for rice, wheat, skimmed milk powder, butter, beef and sugar is provided 
by a system of public intervention.  Public interven tion in the form of buying-in and storage of surplus 
production can only be operated to provide a safety ne t function at price levels that are substantially 
below the current EU and world market prices. 
 
De conformidad con el párrafo 9 del informe de la Secretaría indica que…"en el período 1992-2003, 
la estructura de la ayuda en la UE experimentó un cambio significativo y pasó de las intervenciones 
en el mercado a los pagos directos vinculados al  número de cabezas de ganado y a la superficie de 
cultivo.  Desde 2003, las reformas se han centrado en la orientación hacia un sistema de pagos 
directos desconectados de los precios y la producci ón.  No obstante, el sostenimiento de los precios 
del mercado (según la definición de la OCDE) sigue representando una parte importante, aunque 
decreciente, de las transferencias a los productores.  En el pasado, las subvenciones a la exportación y 
las compras de intervención, junto con unos aran celes relativamente altos, mantenían los precios 
internos muy por encima de los precios en los mercados mundiales de muchos productos.  Con la 
disminución de las subvenciones a la exportación y de las intervenciones, la distancia entre los precios 
internacionales y los precios internos se ha reducid o.  No obstante, las reformas de la PAC no han 
hecho descender los aranceles NMF, que  se mantienen relativamente altos". 
 
7. ¿La secretaria informa que a partir de 2003 , las reformas de la PAC se han centrado hacia un 
sistema de pagos directos desconectados de los precios y la producción. Podría la Unión Europea 
explicar cómo garantiza que este tipo de apoyos no causen distorsión en los precios y en el comercio? 
 
Answer 
The decoupled support payments are made in full compliance with the criteria of Annex 2 of the 
Agreement on Agriculture.  This means that the su pport has no or at most minimal trade distorting 
effects or effects on production  
(a) Ayuda interna 
Pagos directos 
 
De conformidad con el párrafo 16 del informe de  la Secretaría indica que… "Actualmente, los 
Estados miembros también pueden r eservar algunos de los fondos destina dos a los pagos directos para 
pagos directos vinculados a la pr oducción, pero a partir de 2012, esta flexibilidad sólo se aplicará a las 
vacas nodrizas, las ovejas y las cabras, y el algodón (en este caso, el 35 por ciento del componente del 
algodón del régimen de pago único debe seguir vinc ulado a la producción), mientras que las ayudas 
transitorias para la producción de frutas y hortalizas  se mantendrán hasta el ejercicio presupuestario 
de 2014, a más tardar" 
 
8. ¿Solicitamos a La unión Europea señalar los motivos que conducen a mantener el apoyo al 
algodón que es del 35% del componente del algodón del régimen de pago único debe seguir vinculado 
a la producción a partir de 2012? 
 
Answer 
According to the accession Treaties of Greece and Spain coupled support must be provided to the 
cotton sector.  At the time of the reforms of 2006 and 2008 the appropriated level of support that was 
to be provided was established at 35% of the suppor t level before decoupling of the then existing aid. 
The support for area payments is currently € 272 milli on at most.  Coupled support in the sector will 
be maintained also after 2012. 
 WT/TPR/M/248/Add.1 
Page 295 
 
 
  Sostenimiento de los precios del mercado interno 
 
De acuerdo con el párrafo 20 del informe de la S ecretaría indica que… "... Además, se compraron en 
régimen de intervención 1 56 8.000 toneladas de cereales en la campaña de comercialización 
2008/2009 y 5.875.000 toneladas en 2009/2010".  
9. ¿Al respecto, solicitamos a la Unión Eur opea explicar que situaciones de mercado se 
presentaron para que la interven ción registrara este aumento? 
 
Answer 
Out of the 5 875 000 tonnes of cereals bought-i n during the 2009/2010 marketing year, 5 606 000 
tonnes were barley.  This was due to a large harvest  of this cereal which provoked low market prices 
 Niveles de ayuda interna 
 Según el párrafo 44 del informe de la Secretaría indi ca que…"en el marco de la  revisión intermedia de 
2003 y de las reformas posteriores, el sostenimient o de los precios del compartimento ámbar y los 
pagos directos vinculados a la producción del co mpartimento azul disminuyeron, mientras que la 
ayuda a los ingresos por medio del compartimento ve rde, principalmente el régimen de pago único, 
aumentó (gráfico IV.3).  La ayuda otorgada para los servicios generales se ha mantenido 
relativamente constante en el último decenio, pe ro en 2007/2008 se registró un importante incremento 
de los gastos en servicios de divulgación y asesora miento en relación con el año anterior, ya que 
pasaron de 347 millones de euros a 1.114 millones.  La ayuda a los programas de asistencia estructural ha sido relativamente constante;  según l as autoridades, el aparente  aumento de los gastos 
de la ayuda a la inversión en 2007-2008 se debió a que la notificación comprendía la transición a un 
nuevo período de programación en el qu e los gastos suelen incrementarse". 
 
10. ¿Podría la Unión Europea dar una descrip ción de los programas para las cuales se han 
utilizado estos recursos?  
Answer 
The EU invites Colombia to consult the WTO DS:2  notification G/AG/N/65/EEC. In this notification 
detailed descriptions of Green Box support programs applicable in the period 2007-2013 are provided, 
including structural adjustment assistance.  Referenc es to relevant legislation are also provided in that 
notification.  
 En el párrafo 19 del informe de la Secretar ía indica que…"la utilización de los programas de 
sostenimiento de los precios del mercado interno ha  disminuido considerablemente en los 20 últimos 
años, ya que los precios de intervención y las can tidades que pueden ser objeto de intervención se han 
reducido.  Con la aplicación de l "chequeo" de 2008, las intervenciones se han restringido a los 
siguientes productos:  - trigo, a 101,31 euros por tonelada, hasta 3 millones de toneladas; 
- mantequilla, a 2.217,51 euros por to nelada, hasta 30.000 toneladas; 
- leche desnatada en polvo, a 1.746,90 euros por tonelada, hasta 109.000 toneladas;  y - carne de bovino, cuando el precio de me rcado medio en un Estado miembro o región 
disminuye a menos de 1.560,00 euros por tonelada durante dos semanas consecutivas". 
 
También se han fijado precios de intervención para va rios otros productos, entre ellos los siguientes: 
trigo duro, cebada, maíz y sorgo (al mismo precio que el trigo);  y arroz paddy (a 150 euros por 
tonelada), pero la cantidad que pue de ser comprada en régimen de intervención se ha fijado en cero.  
También se fijaron precios y cantidades de intervenci ón para el azúcar, pero dejaron de aplicarse a 
finales de septiembre de 2010.  La Comisión podr á decidir continuar el régimen de intervención WT/TPR/M/248/Add.1 
Page 296  
 
 pública en el caso del trigo duro, la cebada, el maíz, el sorgo, el arroz paddy, el azúcar, la mantequilla 
y la leche desnatada en polvo, por encima de los lím ites señalados supra cuando la situación del 
mercado y, en particular, la evolución de los precios de mercado así lo requieran". 
 
11. ¿Se solicita a la UE señalar que otros factores además del precio y los volúmenes son señales 
de la situación del mercado para otorgar la medida de sostenimie nto.  Existen nuevos límites de 
acuerdo a la situación del mercado para cada uno de los productos enunciados, podría la UE 
proporcionar dichos valores? 
 
Answer 
No other factors and no other limits than those me ntioned in (WT/TPR/S/248)  paragraphs 19 and 20 
on page 107 are implemented to justify the openi ng of an intervention measure.  It must be 
emphasized that the reform introduced with the 2008 Health Check and implemented by the 
Regulation (EC) No 72/2009 was applicable on 1st July 2009 for durum wheat, on 1st September 
2009 for rice, on 1st October 2009 for sugar and on 1s t July 2010 for common wheat, barley, maize 
and sorghum. Since those dates, no inter vention occurred beyond the pre-set limits.  
 
En las páginas 121 y 122 del informe de la Secretar ía indica que…"las ayudas al sector de las frutas y 
hortalizas se otorgan por medio de las organizaci ones de productores y sus programas operativos.  
Desde comienzos de 2008, las organizaciones de pr oductores han tenido más flexibilidad para elegir 
entre diferentes instrumentos, en particular medidas de prevención y gestión de crisis como la retirada 
del mercado (cuando los productos se retiran del mercado);  la no cosecha (cuando no se cosechan 
productos comerciales);  y la cosecha en verde (c osecha total de productos no comercializables antes 
de la cosecha normal).  Las organizaciones de producto res también pueden elegir entre las medidas de 
gestión de crisis como la promoción y comunicaci ón, la capacitación, los seguros de cosechas, y el 
apoyo al establecimiento de fondos mutuos.  Adem ás, también pueden aplicar medidas relacionadas 
con la planificación de la producción; la calidad, co mercialización y promoción de los productos;  la 
capacitación y las medidas ambientales.  Los programas operativos de las organizaciones de productores reciben un 50% del presupuesto de la UE, excepto  las retiradas del mercado para la libre 
distribución a las organizaciones y fundaciones benéficas, las instituciones penitenciarias y las escuelas, que se financian al 100 % con cargo al presupuesto de la UE". 
 
12. ¿Podría la UE suministrar los valores del presupuesto destinados para dichas organizaciones 
desde 2006 a la fecha? 
 
Answer 
The total amount of EU expenditure for support to the operational funds has been the following (in € 
mio per year [January - December] of implementation): 
2006 2007 2008 2009 2010 
568.8 598.2 646.4 687.5 725.6 
 
Contingentes arancelarios 
 De acuerdo al párrafo 36 del info rme de la Secretaría indica que… "Las tasas de utilización varían 
considerablemente entre los contingentes arancelarios .  En la última notifi cación correspondiente a la 
campaña de comercialización 2008/2009 y el año na tural 2009, 39 contingentes arancelarios fueron 
plenamente utilizados, mientras que otros 20 no se utilizaron para ninguna importación". 
 
13. ¿Nos gustaría recibir  información s obre los productos, condiciones de acceso y 
administración de los  contingentes que se afirma  arriba no fueron usados, y las razones de su no 
utilización?  WT/TPR/M/248/Add.1 
Page 297 
 
 
  Answer 
For the management methods applied to quotas we would like to refer Costa Rica to EU notifications 
concerning imports under tariff quotas (table MA:2), in particular to the footnote marked with an asterisk (last notification G/AG/N/EEC/67 of 18 January 2011 covering the marketing year 2008/09 
and the calendar year 2009).  
 
The reasons for a low fill rate for certain quotas are linked to mark et conditions, such as sufficient 
supply of the products at competitive prices on the internal market.  
 
(c) Subvenciones a la exportación 
De acuerdo al párrafo 38 del informe de la Secret aría indica que… "El régimen de subvenciones a la 
exportación de la UE no ha experimentado cambios su stanciales en los últimos años.  En virtud de los 
compromisos que le corresponden en el marco de la OMC, la UE puede utilizar las subvenciones a la 
exportación para 20 grupos de produc tos diferentes, de los cuales 10 recibieron subvenciones en la 
campaña de comercialización 2007/2008, año más r eciente para el que se ha presentado una 
notificación.  La cuantía de la subvención a la e xportación varía en función de los productos y puede 
variar de un mercado a otro, pero, a fin de ajustarse a las reformas internas y al aumento de los precios 
mundiales de los productos agrícolas, algunos pr oductos han dejado de recibir subvenciones a la 
exportación"  14. ¿El Gobierno Colombiano invita a las estamentos de la UE a actualizar sus notificaciones 
sobre subsidios a la exportación y ayuda interna en el menor tiempo posible.  Es importante, no 
olvidar que el  mecanismo de notificaciones es una herramienta para mejorar la transparencia dado que permite conocer los programas y medidas que aplican los países Miembros?  
Answer 
The EU agrees with the observations made by Co lombia concerning timely notification of export 
subsidies and domestic support. 
 
Informe del Gobierno de WT/TPR/G/248 
 
Según el informe del Gobierno en las páginas 10  y 11, numeral 2.1 indica que… "El Tratado de 
Lisboa otorga a la UE competencia exclusiva respecto de la inversión extranjera y faculta para adoptar 
disposiciones transitorias para aumentar la segurid ad jurídica de los acuerdos sobre inversiones en 
vigor concertados por los Estados miembros con terceros países.  Además, establece que la Comisión 
propone autorizarles a mantener en vigor todos los acuerdos sobre inversiones que hubieran concluido 
antes de la entrada en vigor del Reglamento y, cuando concurran determin adas condiciones, negociar 
nuevos acuerdos o renegociar los ya existentes.  
 15. ¿Significa lo anterior que los BIT existentes se renegociarán y Cuáles serían las disposiciones 
transitorias que adoptaría la UE para "aumentar la seguridad jurídica de los acuerdos de sobre 
inversiones en vigor concertados por los estados miembros con terceros países" y Cuáles son las 
motivaciones o razones que los llevan a adoptar esas medidas?  Answer 
After the entry into force of the Lisbon Treaty, fo reign direct investment b ecame part of the Common 
Commercial Policy, which falls within the exclus ive competence of the European Union.  The 
proposed Regulation establishing transitional arra ngements for bilateral investment agreements 
between Member States and third countries contains provisions to regulate the effects under the 
European law of the new division on competence be tween the EU and its Member States with regards 
to their BITs in relation to th e future comprehensive Eu ropean international investment policy. The 
proposed Regulation if adopted as such by the European parliament and the Council would reinforce WT/TPR/M/248/Add.1 
Page 298  
 
 with regards to European law the status of the b ilateral investment agreements concluded by Member 
States with third countries, which are and remain vali d under international law.  Bilateral investment 
agreements between Member States and third countries would be maintained in force, in order to 
ensure the necessary level of prot ection for investors.  It would moreover establish the conditions and 
the procedure under which Member States would be empowered to negotiate new bilateral investment 
agreements or re-negotiate existing ones.  Sin ce the proposed Regulation is still under discussion 
between relevant EU institutions, no further in formation is available at this stage.   
 
16. ¿Cómo se hará esto dado que existen dife rencias en cada BIT ne gociado o por negociar y 
sería prioritario otorgar jerarquías a los nuevos BIT o a los que renegocie la UE con los diferentes 
países del mundo? 
 
Answer 
See answer to question 15 above.  As far as futu re investment protection agreements at EU level are 
concerned, the Commission has already presented in its Communication To wards a comprehensive 
European international investment policy the cr iteria for selecting future negotiating partners. 
 
De acuerdo a la página viii, numeral 9 del in forme del Gobierno indica que… "Numerosos Estados 
miembros de la UE ayudaron a las empresas nacionales afectadas por la crisis económica y que otros sectores, en particular los del automóvil, la c onstrucción y el turismo, recibieron también ayudas 
considerables". 
 
17. Lo anterior significa que varios sectores de  países en vía de desa rrollo no pueden o no tienen 
estos estas ayudas y les es difícil competir. ¿Cóm o qué tipos de ayudas se facilitaron?, ¿Cuál es el 
presupuesto aportado por cada Estado miembro pa ra cada sector?, Cuál es la duración de estas 
ayudas?,  
 
Answer 
The Commission always favours a multisectorial approach when assessing aid. Aid should in 
principle apply across all sectors.  Following this general principle, assistance provided under the 
temporary framework was not sector specific.  Thus, there are no consolidated data on the volume of 
aid under the temporary framework di saggregated by economic sector.   
The Temporary Framework provided Member States w ith additional possibilities to grant aid during 
the crisis in the form of compatible limited am ount of aid (the 500 000 Euro measure), subsidised 
loans, subsidised guarantees and subsidised loans for the production of green products.  In addition, 
it introduced temporary adaptations of existing in struments:  the Risk Capital Guidelines and the 
short-term export credit Communication.  The most used instruments by the Member States were the 
500 000 measure and the subsidised guarantees.  
The measures adopted in the context of the crisis were limited in time and the priority now is to 
ensure the exit.  In authorizing aid, the Commissi on was particularly adamant that the measures were 
limited in time and/or contain measures to incentivize an exit from public support as soon as possible. 
The rolling back process has started: on 1 Decemb er 2010 a decision was taken to gradually phase 
out the temporary support while prolonging some of  the measures applicable to the financial and the 
real economy sector until 31.12.2011 but subject to stricter conditions.  However, it is up to the 
Member States to make use or not of this possibility.  
The WTO report refers to support under the Eur opean Economic Recovery Plan, which is broader 
than the temporary framework for State aid and includ es a wide array of measures many of which do 
not entail State aid.  
The data mentioned in the WTO report stems from the following study: WT/TPR/M/248/Add.1 
Page 299 
 
 
  http://ec.europa.eu/economy_finance/public ations/european_economy/2009/pdf/ee11_2009_en.pdf. 
There are no more updated data. 
Según la página 5, numeral 13 del informe del Gobierno... "EL ENTORNO ECONÓMICO, se hace 
alusión a importantes desequilibrios fiscales en Greci a, que se ha propagado a otros países de la zona 
del euro.  El Fondo Europeo de Estabilidad Financ iera será reemplazado de forma permanente por el 
Mecanismo Europeo de Estabilidad a partir de medi ados de 2013.  Para ello deberá modificarse el 
Tratado de Funcionamiento de la Unión Europea". 
 
18. ¿Podría por favor indicarnos en líneas genera les como funcionará el  Mecanismo Europeo de 
Estabilidad y cuáles serían los cambio s fundamentales a modificar en el  Tratado de funcionamiento de 
la Unión europea? 
 
Answer 
At its meeting on 24/25 March 2011, the European Council acted upon a previously expressed need 
for a permanent crisis resolution mechanism by reaching an agreement to establish the European 
Stability Mechanism (ESM).  Financial assistance will be provided by mutual agreement and under 
strict policy conditionality, to the benefit of eu ro-area Member States that  are experiencing severe 
financing problems, and when such an intervention is deemed indispensable to safeguard the stability 
of the euro area as a whole.   The ESM will have a Board of Governors consisting of the Ministers in charge of finance of the euro-
area Member States (as voting members), with  the European Commissioner for Economic and 
Financial Affairs and the President of the ECB as  observers.  The Board of Governors will be the 
highest decision-making body of the ESM and will take the following major decisions by mutual 
agreement:  
 the granting of financial assistance; 
 the terms and conditions of financial assistance; 
 the lending capacity of the ESM; 
 changes to the menu of instruments. 
 
The ESM will have an overall effective lending capacity of 500 billion euros, including the 
outstanding amount of European Fi nancial Stability Facility l oans; this lending capacity will 
establish the ESM as the largest international financi al institution (IFI) in the world.  The ESM will 
aim to obtain and maintain the highest credit rating from the majo r credit rating agencies.  The ESM 
will have a total authorized capital of € 700 billion, including € 80 billion of paid-in capital.  The 
payment of paid-in capital will be phased-in in  five equal instalments (the process may be 
accelerated, if needed).  The contribution key of each Member State is based on the ECB capital key 
(temporarily adjusted for Member States having a GDP below 75 % of the EU average).  
Any decision to provide financial assistance will be  taken by mutual agreement (unanimity of the 
Members participating in the vote) on the basis of a debt sustainability analysis of the Member State concerned conducted by the Commission and the IMF, in liaison with the ECB. 
The policy conditionality attached to the financial assistance should be consistent with the EU 
surveillance framework.  To this end, the Commi ssion will propose a Regulation based on Article 136 
of the TFEU establishing an enhanced surve illance for Member States under ESM financial 
assistance. 
The ESM will be able to lend at fixed or variable rat es.  The pricing of the ESM will be in line with 
IMF principles and, while remaining above the fundi ng costs of ESM, will include an adequate mark-
up for risks. WT/TPR/M/248/Add.1 
Page 300  
 
 The ESM is explained in greater depth in, for inst ance, the Quarterly Report on the Euro Area April 
2011 which can be found at:  http://ec.europa.eu/economy_finance/publications /qr_euro_area/2011/pdf/qrea1_en.pdf. 
 
Evolución del mercado interior y de los elementos principales de política general 
 
Según el párrafo 21 del informe del Gobierno indica que… "para contrarrestar los riesgos derivados 
del agotamiento de las finanzas públicas, la pé rdida de confianza empresarial y la amenaza del 
desempleo, la UE propuso a lo largo de 2010 una serie de medidas para revitalizar la economía, 
reforzar el potencial de crecimiento de la UE, estimular la inversión y mejorar las capacidades.  Los 
aspectos en los que la UE hace hincapié son reduc ir el uso de energía y las emisiones de carbono, 
mejorar la cualificación de la población, consegui r que el trabajo sea atractivo, aprovechar el 
potencial de un mercado único digital y fomentar la investigación y el desarrollo y la tecnología 
avanzada" 19. ¿Cuáles son las medidas que la UE propuso a lo largo de 2010 para re vitalizar la economía, 
reforzar el potencial de crecimiento de la UE, estimular la inversión y mejorar sus capacidades para 
contrarrestar los riesgos derivados del agotamient o de las finanzas públicas la pérdida de confianza 
empresarial y el desempleo y que resu ltados se han obtenido con las mismas?  
 
Answer 
The Commission has launched the Europe 2020 strategy in the summer of 2010.  It consists of policy 
actions taken at the member state level and at the EU  level.  Smart, sustainable and inclusive growth 
is what the Europe 2020 Strategy proposes.  Sm art growth is fostering knowledge, innovation, 
education and the digital society. Sustainable gr owth is making production more resource efficient 
while boosting competitiveness. And inclusive growth is raising participation in the labour market, 
increasing the acquisition of skills, and combating poverty.  
 
The European Union also moved to strengthen its economic governance.  In 2010, it adopted 
legislation on financial supervision enhancing the oversight of micro- and macro-prudential risks33.  
In September 2010, the Commission put forward a le gislative package strengthening the Stability and 
Growth Pact by enhancing incentives for Member St ates.  The package also includes legislation on 
the surveillance of macroeconomic imbalances34.  In addition to the legislative proposal on economic 
governance, the European Union also adopted a ne w working method for its economic surveillance, 
the so-called European Semester, which was implemente d for the first time in 2011.  In this context,  
the Commission published the first Annual Growth Survey at the beginning of 2011 laying out the key 
policy priorities for the years ahead35.  Member States recently submitted their National Reform 
Programmes and Stability or Convergence Progra mmes.  Which were assessed by the European 
Commission.  The Commission's policy guidance wa s subsequently endorsed by the European 
Council36.  
 The EU-level dimension of the Strategy is captu red in the form of the seven flagship initiatives
37 for 
which the Commission has budgeted around €60 billion to catalyse progress.  Each of these initiatives 
                                                      
33http://ec.europa.eu/economy_finance/articles/ structural_reforms/article15861_en.htm;  
http://ec.europa.eu/internal_market/finances/committees/index_en.htm. 
34http://ec.europa.eu/economy_finance/articles/eu_economic_situation/2010-09-
eu_economic_governance_proposals_en.htm. 
35 The Annual Growth Survey can be found at http://ec.europa.eu/europe2020/tools 
/monitoring/annual_growth_survey_2011/index_en.htm. 
36 http://ec.europa.eu/europe2020/tools/monitoring/recommendations_2011/index_en.htm. 
37 http://ec.europa.eu/europe2020/tools/flagship-initiatives/index_en.htm. WT/TPR/M/248/Add.1 
Page 301 
 
 
  and all combined represent a set of actions, predom inantly at EU level, which support the national 
reform efforts by removing persisting constraints to the Single Market.  
 
Acta del Mercado Único 
 
De acuerdo al párrafo 31 del informe del Gobierno indica que…"la mejora del mercado único es uno 
de los pilares de la estrategia "Eur opa 2020" y un requisito previo para  que tenga éxito.  En octubre de 
2010, la Comisión anunció sus planes encaminados a reforzar el mercado único, con medidas orientadas a impulsar el crecimiento y consolidar los derechos de los ciudadanos .  A fin de impulsar el 
crecimiento, la competitividad y el progreso soci al hizo propuestas para que el mercado único 
funcionara mejor y para facilitar la actividad de las empresas, los consumidores y los trabajadores.  El 
Acta del Mercado Único, que se publicó el 13 de abril de 2011 y se basa en los resultados de una 
consulta pública realizada entre noviembre de 2010 y fi nales de febrero de 2011, es un plan global de 
dos años de duración (2011-2012) orie ntado a relanzar el crecimiento y crear empleo en la UE.  Sus 
"12 prioridades para estimular el crecimiento y re forzar la confianza", junto con las 12 "medidas 
clave" que se proponen en el plan deberían llevar se a cabo antes de que haya concluido el año 2012". 
 20. ¿Cuáles son los principales sectores productivos en los que trabaja la UE para alcanzar los 
objetivos del plan global del Acta del Mercado Único, orientados a "relanzar el crecimiento y crear 
empleo en la UE? 
 
Answer 
The Single Market Act aimed at boosting the inter nal market, with regards to companies, workers, 
consumers and more generally all citizens, covering  all goods and services sectors, without any 
exception.  It is important to note that th ere was particular emphasis  on SMEs, on social and 
solidarity-oriented economy, and on the networks ar ound them all (digital, transports and energy). 
 
Respuesta de la UE para hacer frente a la c onmoción financiera y la desaceleración económica 
 
De acuerdo al párrafo 54 del in forme del Gobierno indica que… "La UE también desempeñó un papel 
de primer orden en la adopción de medidas internaci onales contra la crisis.  Destacó en los debates 
habidos en el seno del G-20 como principal foro de la cooperación económica internacional.  La UE 
abogó por que se tomaran iniciativas a escala mundi al para colmar las la gunas existentes en la 
reglamentación y supervisión financieras a nive l internacional y promovió con fuerza nuevas normas 
sobre el capital de los bancos.  Presionó también para que se tomaran medidas eficaces encaminadas a 
reducir el déficit y la deuda, estimulando al mismo tiempo las perspectivas de crecimiento.  La UE apoyó con decisión que el G-20 asumiera en la cumb re celebrada en Seúl en noviembre de 2010 el 
compromiso de luchar contra el proteccionismo en todas sus formas y de promover una actuación 
conjunta para impulsar el crecimiento y el empleo en todo el mundo…" 
 
21. ¿Cuáles son las iniciativas por las que la UE "abogó en el seno del G-20 para colmar las 
lagunas existentes en la reglamentación y supervis ión financieras a nivel internacional" y cuáles las 
normas sobre el capital de los banc os que "promovió con gran fuerza" en el mismo ámbito, así como 
aquellas encaminadas a reducir el déficit y la deuda? 
 
Answer 
The EU is determined to implement the decisi ons agreed in the G20/FSB framework on financial 
reform and supervision.  The following table trans mitted to the FSB summarizes the progress in the 
implementation of the G20/FSB recommendations on financial reform and supervision: 
In addition, after a few years in which the EU had significant problems in respecting the goals it set 
itself on economic and fiscal policies, fiscal consoli dation is now making headway.  Budget balances 
are projected to improve substantially over the co ming years.  By 2012, the average fiscal deficit is 
projected to come down to 3¾% of GDP in the EU  and 3½% in the euro area from the 2009 peaks of WT/TPR/M/248/Add.1 
Page 302  
 
 respectively 6¾% and 6½%.  In order to strengt hen the surveillance mechanism, the Commission 
presented six legislative proposals on 29 Septemb er 2010.  The European Parliament and the Council 
are expected to give their final agreement to the package in June 2011.  A description of the EU's 
actions can be found at:  http ://europa.eu /rapid/pressReleasesA ction.do?reference=memo/11/364. 
 Según el párrafo 57 del informe del Gobierno indi ca que… "En cuanto a las medidas encaminadas a 
abordar la dimensión social de la crisis, se han hecho cambios en relación con el apoyo del Fondo 
Social Europeo para ayudar a las personas a manten er el empleo o buscar otro nuevo y también se ha 
modificado el Reglamento (CE) Nº 1927/2006 re lativo al Fondo Europeo de Adaptación a la 
Globalización, con objeto de ayudar a los trabaja dores despedidos recientemente a que vuelvan a 
trabajar". 
 22. ¿Sería importante y enriquecedor conocer los "cambios que se han h echo en relación con el 
apoyo del Fondo Social Europeo para ayudar a las personas a mantener el empleo o buscar otro nuevo" y así mismo conocer las modificaciones al "Reglamento (CE) No.1927/2006 relativo al Fondo 
Europeo de Adaptación a la Globalización, con obje to de ayudar a los trabajadores despedidos 
recientemente a que vuelvan a trabajar"?  
Answer 
The European Globalisation adjustment Fund (EGF) 
As a specific response to the global financial and economic crisis and the resultant redundancies in 
the Member States of the European Union, the European Globalisation adjustment Fund (EGF) 
Regulation was amended to allow workers made redundant  due to the crisis to be eligible for support 
from the Fund, which previously had been able to  help only workers made redundant due to trade 
related factors.  The amendment further allowed an EGF contribution of 65 % of the total cost of the 
measures taken to help the workers find new jobs.  This derogation applies from 1 May 2009 to 
30 December 2011. 
In June 2011, the European Commission put forward a proposal to extend these derogations from the 
original EGF Regulation by another two years, i.e.  until the end of 2013, as the economic revival 
following the crisis is slow, particular ly as regards employment growth. 
The 2009 amendments of the EGF Regulation also included a number of permanent changes.  The 
most important of them lowered the threshold number of redundancies needed for an eligible 
application for assistance from the Fund (fro m 1,000 to 500 persons per case), and extended 
implementation of the relevant measures from 12 mont hs (following the date of application) to 24 
months. 
The European Social Fund (ESF) 
At the end of 2008, the EU decided to increase th e amount of advance payments transferred to the 
Member States for implementation of projects to be financed by the Fund.  Subsequently, EUR 2.3 
billion from the ESF were provided to the Member States in 2009.  Th is helped to implement projects 
which otherwise might have been blocked due to liqu idity constraints in the Member States. In June 
2010, five Member States hardest hit by the crisis (Estonia, Hungary, Latvia, Lithuania and Romania) received additional EUR 371.3 million as advance payments. 
The ESF Regulation was also amended to simplify  some requirements (e.g. concerning supporting 
documents) and to facilitate management, adminis tration and control of ESF operations.  
The European Commission also encouraged Member States to use the built-in flexibility of ESF 
Operational Programmes to redirect Funds toward s anti-crisis measures.  Several Member states 
used for instance the ES F to support specific schemes provid ing training and up-skilling to workers 
made temporarily redundant  due to the sudden collapse of world demand.  
 WT/TPR/M/248/Add.1 
Page 303 
 
 
  ARGENTINA 
 
Informe de la Unión Europea (WT/TPR/G/248) 
 
I. INTRODUCCIÓN 
En el párrafo 6 del Informe de la Unión Europea, se señala, al referirse a la  posición de liderazgo que 
adoptó la UE en ocasión de la crisis económica y fi nanciera mundial, que en la formulación de sus 
políticas ha obrado de acuerdo con el "principio de que una recuperación sostenible tiene que seguir 
basándose en los mercados abiertos y en las normas internacionales".  
 
Question 1 ¿Cómo se condice esta postura de "mercados abiertos " con la reciente propuesta de reforma del SGP 
formulada por la CE que, de entrar en vigor (a más tardar el 1 de enero 2014), significaría la exclusión 
de sus beneficios de un número importante de países en desarrollo? (se estima que el número de 
beneficiarios caería de 176 a 85).  Answer 
The objective of the Commission's proposal is to fo cus preferences on the coun tries most in need — 
the poorest as defined in accordance with clear, transparent, objective and widely used criteria.  It 
appears that these countries are precisely those which face the largest difficulties in the context of the 
global financial and economic crisis.  The Commission 's proposal thus responds fully to the trade, 
financial and development needs of those developing countries, in line with international obligations 
and relevant commitments.   Question 2 
En el párrafo 62 del Informe, la UE señala que  la OMC y el sistema multilateral de comercio 
constituyen el eje central de la política comercial de la UE, que considera que un sistema de normas 
de aplicación mundial es el procedimiento más adecuado de garantizar que los intercambios 
comerciales entre los países sigan siendo abiertos y que la prosperidad sea ampliamente compartida.  ¿Podría la UE explicar por qué en determinados  casos, como ser cuestiones sanitarias (i.e. Límites 
Máximos de Residuos –LMR-);  o medioambiental es (ILUC, biocombustibles) la UE establece 
criterios y normas que en algunos casos no se ajusta a la normativa multilateral de comercio sin una 
debida justificación científica o causando disrupcion es de los flujos comerciales que podrían ser 
evitadas con medidas menos restrictivas? 
 
Answer 
The EU is mindful of its international obligations and it always works to ensure that its measures are 
consistent with them, including in the contex t of the EU's SPS and environmental policies. 
 
3.2. OMC 
En el párrafo 65, el Informe de la UE sostiene que respecto al "acceso a los mercados para los 
productos no agrícolas (AMNA), la UE pretende l ograr una liberalización significativa a través de 
acuerdos sectoriales, que considera un complemento necesario del sistema basado en una fórmula.  La 
liberalización de los productos no agrícolas es funda mental para la dimensión de desarrollo de la 
Ronda, ya que la gran mayoría de las exportaciones de los países en desarrollo consiste en productos 
manufacturados.  El logro de un resultado ambicioso en la esfera del AMNA también es beneficioso 
para el comercio Sur-Sur, pues el 70 por ciento de los derechos que pagan en este sector los países en 
desarrollo lo pagan a otros países en desarrollo."  
 WT/TPR/M/248/Add.1 
Page 304  
 
 Question 3 
¿Considera la UE que podrá hacer una contribución sust antiva para reducir los aranceles en el sector 
de los productos agrícolas procesados (PAPs), de  modo tal que los aranceles escalonados que hoy 
paga este tipo de mercancías en ese mercado pue dan equipararse con los que se pagan por los 
productos NAMA, siendo que esto podría resultar una  solución interesante para muchos países en 
desarrollo?. 
 
Answer 
Processed Agricultural Products (PAPs) are listed in the Annex 1 to the Agreement on Agriculture. 
Consequently PAPs are covered by the agric ultural part of the DDA negotiations.  
 
Question 4 
¿En qué sentido y bajo qué requisitos dotaría la UE  de un componente ecológico a los pagos directos 
del primer pilar mencionados en el  párrafo 83? ¿Cuáles son las características que se encuentran en 
debate en la UE en ese sentido?     Question 5 
¿Cómo debería entenderse la noción de "prestar má s atención a la competitividad, la innovación y el 
medio ambiente en la política de desarrollo rural" mencionada en el párrafo 83? ¿Qué implica prestar 
más atención en virtud de los debates que están teniendo lugar en la UE? 
 
Answer to Questions 4 and 5 
We thank Argentina for their interest in the futu re CAP policy.  The legislative proposals for the CAP 
post 2013 will be presented by the European Commission in the second half of 2011.  It is too early at 
this moment to provide a meaningful reply to this question.  For information concerning the shape of 
the future policy, please refer to  the Communication of the European Commission "The CAP towards 
2020:  Meeting the food, natural resources and terr itorial challenges of the future" which was 
published in November 2010.  Question 6 
¿Cuáles son los productos a los que se refiere el pá rrafo 112 y sobre los cuales la UE está examinando 
la certificación y etiquetado? ¿A qué se refiere la  UE al decir que está examinando el "etiquetado 
privado"? 
 
Answer 
Paragraph 112 of the EU report re fers to natural resource-based pr oducts.  As an example, the case 
of forest products can be mentioned: the emission of licenses attesting to the legality of timber from 
exporting countries is a key element in the schemes to combat illegal logging and trade in illegally-
harvested timber that the EU and several par tner countries have agreed to set up. 
 The EU is also examining closely developments with  regard to labelling initiatives of a private nature. 
Such initiatives are an expression of individual fr eedom.  It is however appropriate for public 
authorities to analyze and understand social and market tr ends.  As a general rule, the EU does not 
intend to issue regulations concerning private schemes, as it recognizes the market-based nature of 
such schemes. 
 
3.4 P
OLÍTICAS SECTORIALES  
 
Servicios  
En el párrafo 88, el Informe de la Unión Eur opea señala que se está estudiando la aplicación de 
nuevas medidas para profundizar aún más el mercado interior de servicios. 
 WT/TPR/M/248/Add.1 
Page 305 
 
 
  Question 7 
¿Podría la Unión Europea dar mayores precisiones sobre el tipo de medidas que se adoptaría para 
profundizar el mercado interior de servicios? 
 
Answer 
The Services Directive was a major step forward,  but work remains to be done to continuously 
improve the EU services markets.  Gains from a better functioning Single Market for services are 
estimated at annual profits of €60 to €140 billi on, a growth of GDP of between 0.6 and 1.5%. 
 While services currently represent two-thirds of the EU's GDP and employment, the share of services 
in the intra-EU  trade should still be increased and SMEs should be supporte d in delivering services 
outside of their home countries.  In response, the EU  has launched targeted actions to strengthen EU 
services markets, notably: 
 Making sure the Single Market works on the ground:  In 2011 and 2012, the Commission has 
started and will carry out a "performance check" of the Single Market for services from the 
user's perspective.  The "perfor mance check" will take account of all other EU rules applying 
to services beyond the Services Directive and will assess how these different rules interact. 
The objective is to identify specific practical  problems that hamper the internal market for 
services and how the interaction between differen t rules may have unintended effects.  
 Removing obstacles to cross-border services:  The "mutual evaluation" provided particular 
evidence of difficulties in the cross-border provision of services without permanent 
establishment.  The European Commission will cl osely monitor the effects of the Services 
Directive in this respect.  A first progress report will be published by the end of 2011 and 
from then on annually.  Another aim is to p revent the emergence of new regulatory barriers to 
services in Member States' legislation and, to this end, the European Commission will closely 
monitor relevant developments. 
 
3.6- S OSTENIBILIDAD Y DESARROLLO  
3.6.2 Comercio y desarrollo   
En el párrafo 118, el Informe de la UE se refier e a la propuesta de reforma del SGP dada a conocer 
recientemente por la CE. 
 
Question 8 Observación:  Según estimaciones hechas por la UE, el comercio dentro del Si stema Generalizados de 
Preferencias (SGP) no ha superado en los últimos años más del 5% de las importaciones totales de la UE. No obstante ello, para los países beneficiar ios, en algunos casos, el sistema facilita la 
comercialización de un porcentaje sustantivo de sus exportaciones a la UE.   
En ese sentido, ¿ha analizado la UE las implicancias que una reforma de estas características, que 
excluiría del SGP al 50% de sus actuales beneficiar ios, tendría para estos países y si prevé alguna 
medida comercial de mitigación de sus efectos? 
 
Answer 
No developing country is excluded from the GSP. Deve loping countries will be either a beneficiary or 
eligible to be a beneficiary.  Preferences will be deferred, not withdrawn, for more advanced 
economies, which will again receive preferences s hould there be a change in their trade, financial 
and development needs.   The Commission has carefully analyzed the implications of its proposal.  It has been estimated that 
the impact on the countries whose p references are deferred is, at most, marginal.  The first reason is 
that for more advanced developing countries, expor ts under the EU GSP scheme are not a sizeable WT/TPR/M/248/Add.1 
Page 306  
 
 proportion compared to their total exports to the EU.  The second reason is that the margins of 
preferences provided by the EU ar e relatively low, given our already low MFN tariff levels. A third 
reason is that many current beneficiaries, for wh ich preferences are defer red, are EU FTA partners, 
so they already enjoy better p referential access to the EU market  irrespective of GSP preferences. 
 
While the impact on the countries whose preferences are deferred is marginal, if any, additional 
opportunities are provided for countries most in n eed:  Least-Developed Countries (LDCs) and other 
low income countries.  The overall result is thus  better opportunities for those developing countries 
that are most in need according to th e letter and the spirit of the Enabling Clause.  
 
Question 9 ¿Podría explicar la Unión Europea cómo se condice est a decisión de la CE con lo indicado en párrafo 
122 in fine, cuando se señala que "la UE sigue estan do plenamente decidida a poner el comercio al 
servicio del desarrollo"? Observación: cabe señalar que esta propuesta de refo rma establece criterios de elegibilidad para los 
países beneficiarios que no contempla muchas de la s variables que dan cuenta de la  dimensión del 
desarrollo de los países, y que podrían resultar in compatibles con los criterios de la OMC, dejando 
fuera del Sistema a muchos países que han rea lizado inversiones y especialización para poder 
participar del mercado comunitarios. 
 
Answer 
The Commission's proposal adapts the EU GSP sch eme to the changes that have occurred in the 
global landscape and in the trade, financial and development needs of different developing countries - 
precisely in line with WTO principles.  Question 10 
¿En qué consiste la estrategia para reducir los obs táculos al comercio propuesta en la Comunicación 
"Comercio, crecimiento y asuntos mundiales" de 2010 y cuándo será puesta en práctica por la UE? 
 
Answer 
As mentioned in the Report by the European Un ion, chapter 3, the European Commission adopted a 
new trade policy strategy "Trade, Growth and World Affairs" on 9 November 2010.  One of the 
important elements of the strategy is to focu s on addressing barriers to trade. While cutting tariffs 
remains important, focus is increasingly on non-tariff barriers. 
The EU will seek to address these  barriers through negotiating Deep and Comprehensive Free Trade 
Agreements and through regulatory cooperation with large strategic partners such as US and Japan.  
Enhanced regulatory cooperation – both in order to promote equivalence or convergence (of rules, 
standards, testing and certification practices) interna tionally and to minimize unnecessary costs in 
regulation worldwide – is an important aspect of our trade relationships particularly with our key 
partners, or as part of FTA or similar negotiations.  
In addition to its negotiating ac tivities and regulatory cooperation with trading partners, the EU will 
also reinforce its enforcement agenda to address specific barriers in third country markets.  The 
Market Access Strategy will remain a key element of this enforcement agenda (as mentioned in 
section 3.3 of the Report by the European Union).  One of the key new initiatives from the new trade 
strategy was to produce a Trade  and Investment Barriers Report (TIBR) with the objective of 
triggering appropriate enforcement action including at political level. The TIBR was submitted to the 
European Council 24/25 March 2011, and was one of th e first deliverables of the new EU trade 
strategy.  It takes a strong stance against a handful of "beyond-the-border" trade barriers in strategic 
trading partners for Europe and finds that they are li kely to have a negative effect on around €100 
billon of EU exports. You will find more details in reply to question 11 below. 
 WT/TPR/M/248/Add.1 
Page 307 
 
 
  Question 11 
¿Cuáles son las razones por las cuales la UE consid era que la elaboración anua l del "Informe sobre los 
obstáculos técnicos al comercio", que involucra a todos los países del mundo, ayudará a eliminar 
dichos obstáculos? 
 
Answer 
The Trade and Investment Barrier Report (TIBR) form s part of the Europe 2020 Strategy.  It is 
prepared on an annual basis for the Spring European  Council meeting of the EU's Heads of State and 
Government.  In line with the Commission' s trade policy guidelines of November 2010 
(Communication:  Trade, Growth and World Affa irs), the Report identifies trade and investment 
barriers encountered by European companies in third country markets.  It highlights the importance 
of working at all levels towards the removal of trade barriers so that European companies can have 
fair access to foreign markets.  The Annual Repor t on the implementation of the Market Access 
Strategy, annexed to the TIBR, provides a more de tailed background and coverage of countries and 
issues of interest to the EU and takes stock of progress already made.  
 
Question 12 
¿En qué consiste la "estrategia revisada de la UE  para un desarrollo sostenible", elaborada en 2006? 
 
Answer 
Sustainable development is set out in the Treaty  as the overarching long-term goal of the EU. 
The Sustainable Development Strategy of the Europe an Union, as revised in 2006, is a framework for 
a long-term vision of sustainability in which ec onomic growth, social cohesion and environmental 
protection go hand in hand and are mutually supporting.  With this objective in mind, in recent years, 
the European Union has mainstreamed the objective of sustainable development into a broad range of 
policies.  
Detailed information on the EU Sustainable Developmen t Strategy is publicly available and can be 
consulted on the following websites: http://ec.europa.eu/sustainable/welcome/index_en.htm. http://ec.europa.eu/sustainable/sds2006/index_en.htm. http://ec.europa.eu/environment/eussd/.  
Question 13 El informe menciona que la UE está estudiando algunos instrumentos de política comercial para 
enfrentar el cambio climático, tales como la certific ación de los productos obtenidos de la explotación 
de los recursos naturales y el etiquetado volunta rio o privado. Desearíamos conocer más información 
sobre estos instrumentos en estudio.  Answer 
Please refer to the reply to question 6. 
 
Informe de la Secretaría de la OMC (WT/TPR/S/248) 
 
III. POLÍTICAS Y PRÁCTICAS COMERCIALES, POR MEDIDAS (1) M
EDIDAS QUE AFECTAN DIRECTAMENTE A LAS IMPORTACIONES  
(iv) Aranceles 
 
(a) Arancel NMF  
En el párrafo 30 el Informe  señala que la UE mantiene en línea una base de datos pública que 
incorpora los tipos arancelarios y otras medidas, en  particular las restricciones cuantitativas y medidas 
especiales, aplicados a las importaciones (y exportaci ones).  Según la Comisión, la base de datos, 
conocida como TARIC, "garantiza la aplicación unifo rme [de estas medidas] por todos los Estados WT/TPR/M/248/Add.1 
Page 308  
 
 miembros y da a todos los operadores económicos una  visión clara de todas las medidas que se deben 
adoptar al importar o exportar productos".  Los códi gos en el marco de TARIC se establecen a nivel 
de 10 dígitos."  
Question 14 
¿Podría la UE informar si mantiene rest ricciones cuantitativas y medidas especiales a las 
exportaciones además de las restricciones cuantitativ as y medidas de control de las exportaciones por 
razones de política exterior y seguridad mantenidas por  los Estados miembros de la UE descriptas en 
párrafo 127, página 69? 
 
Answer 
The EU does not maintain quantitative restrictions  on exports other than those justified by GATT 
1994 Articles XX and XXI.  
 
Question 15 
Con relación a la nota al pie nro. 39, se desea señalar que no se puede acceder a la siguiente página 
indicada por la Secretaría:  http://ec.europa.eu/taxation_customs/customs/cus toms_duties/tariff_aspects/customs_tariff/index_en.
htm. 
 
Answer 
We would like to invite Argentina to consult again  the following website, as there seems to be no 
access problems:  http://ec.europa.eu/taxation_customs/customs/cus toms_duties/tariff_aspects/ customs_tariff/index_en.
htm. Likewise, please consult:  http://ec.europa. eu/taxation_customs/customs/customs_duties/. 
 De los párrafos 31 y 34 del Inform e de la Secretaría, se observa que la UE tiene una estructura 
arancelaria altamente complicada por la diversidad de mecanismos que aplica. En particular, la progresividad arancelaria, las crestas tarifarias, los derechos no ad valorem, los contingentes arancelarios y no arancelarios, los derechos específicos y estacionales, el "cuadro Meursing" conforman una estructura que no facilita el comerc io de importación de productos agrícolas.  
Question 16 
¿Está estudiando la UE la posibilidad  de simplificar su estructura ar ancelaria respecto a los productos 
agrícolas en el entendido que la simplific ación hace que la estructura arancelaria sea más 
transparente? 
 
Answer 
EU tariffs are a result of the Uruguay Round negotiations and are bound.  Non ad valorem  tariffs 
cannot be considered as a barrier to trade; the natu re of an import duty should not be confused with 
the level of protection it provides.  Argentina will note  that the EU is the world's largest importer of 
agricultural products.   Question 17 
¿Cómo utiliza la UE el "cuadro meursing" , que según el informe la UE utiliza para determinar los 
aranceles de los productos agrícolas y permite mile s de combinaciones de aranceles? ¿En qué sitio 
Web está publicado este cuadro? ¿Las autoridad es comunitarias piensan tomar medidas para 
simplificar este tipo de procedimient os para el cálculo de aranceles? 
 Answer 
The explanations for the calculation of custom du ties in relation to the composition are inserted in 
Annex 1 to the EU schedule.  In addition, these measures are made public each year by the EU WT/TPR/M/248/Add.1 
Page 309 
 
 
  through a European Commission regulation ame nding Annex I to Council Regulation (EEC) 
N° 2658/87 on the tariff and statistical nomenclat ure and on the Common Customs Tariff. The last 
Commission regulation in question is the Regulation (EU) No 861/2010 (OJEU L 284, 5.10.2010, p. 1 
 Question 18 
¿Conoce la UE algún otro Miembro de la OMC que aplique un régimen de precios de entrada y un 
sistema al estilo de la Tabla Meursing?  
Answer 
Notifications of WTO members are available for exa mination by other Members on the WTO website; 
we invite Argentina to co nsult these notifications.  
 
Question 19 
¿En qué casos se aplican derechos estacionales y derec hos reducidos? ¿Cómo func iona el "régimen de 
precios de entrada"?  Answer 
The entry price system and seasonal tariff lines for fruit and vegetables were accepted and bound as 
part of the UR agreement.  Bound MFN duties on fruit and vegetables appearing in the EU's WTO schedule have two components: an ad valorem duty and a specific duty. 
 
A head note to the EU schedule indicates that the sp ecific duty is only levied in full if the entry price 
of the imported product is lower than a given level (t he EU's institutional ent ry price).  The head note 
indicates that prices not lower than 92% of the EU's institutional price do not trigger the imposition 
of the full duty but of a duty calculated and corresponding to its undershoot in terms of percentage (e.g. an undershoot of 4% triggers a 4% duty).  Furt hermore, a foot note indicates that the EU's entry 
price varies in accordance with th e season.  This reflects the varied seasonal sensitivity of the 
products concerned.  The corresponding head and foot  notes constitute an integral part of EU 
obligations as laid down in its schedule.  Question 20 
¿Considera la UE que los derechos estacionales pue den constituir un mecanismo discriminatorio para 
los países del hemisferio sur? 
 
Answer 
Seasonal tariff lines for fruit and vegetables were ac cepted and bound as part of the Uruguay Round's 
agreement and constitute EU schedule obligations. 
 
Question 21 
¿Cuándo considera la UE que podría estar en condicion es de eliminar las cresta s arancelarias para los 
productos agrícolas? 
 
Answer 
The EU has only a limited number of so-called "tariff peaks" (see the EU notification to the WTO Sec 
on AVEs). The market access provisions foreseen in th e DDA for agriculture would have the effect of 
eliminating all tariff peaks.  Question 22 
¿Podría informar la UE cuál es el arancel pr omedio intra-cuota para productos agropecuarios 
correspondiente al período 2008-2010? 
 WT/TPR/M/248/Add.1 
Page 310  
 
 Question 23 
¿Podría informar la UE cuál es el arancel prom edio extra-cuota para productos agropecuarios 
correspondiente al período 2008-2010? 
 
Answer to Questions 22 and 23 
The calculation of an average duty would depend on the methodology used to  calculate ad valorem 
equivalents (AVEs) of non-ad valorem duties.  Any ca lculation of AVEs has shortcomings as the result 
can be influenced by several elements, including:   the base period and partners chosen;  commodity 
prices;  exchange rates;  shocks in specific markets;  treatment of mixed tariffs and tariff lines for 
which trade data are not available;  and the extent to which preferential trade is included in the unit 
value calculation.  Please refer to (WT/TPR/ S/248) Chapter 3, page 34, footnote 42.  
 
En el párrafo 35 del Informe se menciona que alre dedor del 11 por ciento de las líneas arancelarias 
son líneas no ad valorem .  En promedio, éstas dan lugar a una protección más alta que los tipos ad 
valorem .  El promedio de los EAV de los tipos arancelarios no ad valorem  es del 24,7 por ciento, en 
comparación con el 4,6 por ciento en el caso de los derechos ad valorem .   
Question 24 
¿Cuándo considera la UE que podr ía cambiar de derechos no " ad valorem " a " ad valorem " para 
brindar mayor transparencia? 
 
Answer 
The EU does not consider changing non-ad valorem ta riffs into ad valorem tariffs. Both types of 
tariffs are in line with the EU's tariff bindings.  The EU  is prepared to negotiate the levels of its tariffs 
in multilateral, and in some cases, bilateral negotiations.  
 The nature of an import duty should not be confused with the level  of protection it provides.  
Argentina would note that the calculation of an average duty depends on the methodology used to 
calculate ad valorem equivalents (AVEs) of non-ad valorem duties.  Any calculation of AVEs has 
shortcomings as the result can be influenced by  several elements, including:  the base period and 
partners chosen;  commodity prices;  exchange rates;  shocks in specific market s;  treatment of mixed  
tariffs and tariff lines for which trade data are not av ailable;  and the extent to which preferential 
trade is included in the unit value calculation. 
 
Question 25 
En el párrafo 33 del Informe, se señala que ap roximadamente el 9 por ciento de las líneas son 
derechos de "puro estorbo". 
¿Qué son los derechos de "puro estorbo" a los que se refiere el informe y a que productos se le 
aplican? 
¿Podría la UE explicar la razón de conservar tales aranceles? 
 
Answer 
The EU applies customs tariffs at 2% or less in various chapters of the harmonized system, with the 
majority in chapter 84 (machinery), as can be verified in the publicly available IDB.  The EU does not 
consider lowering its tariffs, including so-called nu isance tariffs unilaterally, but is prepared to 
negotiate the level of tariffs in multilateral and, in some cases, bilateral negotiations. 
 Cuadro III.3 Análisis recapitulativo del arancel NM F, 2011 (Página 40) y párrafo 36 del Informe de 
la Secretaría que expresa "el arancel muestra…una progresividad inversa entre las materias primas 
y los productos semielaborados."  WT/TPR/M/248/Add.1 
Page 311 
 
 
  Análisis No. de líneas Promedio arancelario 
simple (%) Intervalo (%) Desvia-ción 
típica (%) CV 
Materias primas 1.142 6,8 0-93 10,2 1,5 
Productos semielaborados 2.764 4,8 0-124,4 6,8 1,4 
Productos acabados 5.388 7,1 0-200,6 11,6 1,6 
 
Question 26 
¿Podría la UE proveer información por cadena productiva? 
Observación:  Las conclusiones formuladas a partir de promedios simples puede  resultar engañoso. Si 
se sigue este método, uno podría decir que hay escalona miento observando los intervalos (el arancel 
máximo crece a medida que avanza el gra do de elaboración de la materia prima). 
 
Answer 
The EU is not in a position to provide details at product level of the calculations made by the WTO 
Secretariat. Argentina is correct when it notes that  arithmetic averages may not be a satisfactory 
basis.  More fundamentally, the EU would furth er refer to its reservations  about the Secretariat's 
methodology for estimating AVEs – see footnote 42, page 34. 
  
Question 27 
Con relación al párrafo 108, las normas privadas se ap lican en forma creciente en el comercio con la 
UE de productos agroalimentarios, aumentando lo s costos y limitando la posibilidad de acceso de 
diferentes productos al mercado europeo.   ¿Ha implementado la UE alguna medida para ev itar que este tipo de normas, aun cuando sean 
voluntarias, terminen convirtiéndose en ve rdaderas "condiciones de acceso" a la UE? 
 
Answer 
The EU and its Member States are following th e works taken place on th e main international 
organizations dealing with such voluntary standar ds (notably in the World Bank, OECD,UNCTAD, 
OIE and CODEX), which already point ed to the complexity of the i ssue.  About the market access to 
the European Union, the EU operates a very transpa rent import regime in relation to SPS measures 
which takes full account of its multilateral obligations, including in the WTO/SPS Agreement.  As the 
world's largest importer of food and food products , it is also clear that third countries, including 
Argentina, enjoy significant market access to the EU .  In addition, the EU also allocates significant 
resources to inform and train developing countr ies on how best to access European markets, 
including compliance with SPS measures. 
 
Question 28 
Se valorará conocer qué iniciativas de elaboración de  estándares internacionales propugnó la UE en el 
ámbito del Codex Alimentarius para evitar la proliferación y diseminación de estándares privados. 
 
Answer 
The EU and its Member States are very active partic ipants in the works of the Codex Alimentarius 
Commission, and supports the activities of the international standard setting bodies, notably the 
OIE/CODEX/IPPC, in order to provide a compreh ensive framework of standards at the multilateral 
level.  
Question 29 Favor explicar qué accionar ha intentado la UE para  hacer respetar los límites máximos de residuos de 
plaguicidas del Codex por los esquemas privados ( no existe fundamento ni legitimación para que los 
estándares privados se aparten de los LMR establecidos por el Codex). 
 WT/TPR/M/248/Add.1 
Page 312  
 
 Answer 
EU measures are where possible based on relevant in ternational standards.  However, in many cases 
there are no such standards and the EU has therefore to rely on standards developed at the Union level.  These are no more trade restrictive than n ecessary and third countries should recall that they 
apply both to trade within the EU and to im ports from third countries in a non-discriminatory 
manner.  The EU policy is consistent, science bas ed and in the case of lack of an international 
standard, it is supported by the European Food Saf ety Authority (EFSA).  The EFSA is the corner 
stone of EU risk assessments regarding food and feed  safety.  It provides independent scientific advice 
and clear communication on existing and emerging risks. In that sense the European Commission holds regul arly meetings with stakeholders aiming at 
increasing awareness of the importance of interna tional standardisation setting bodies' role in 
international trade.  Question 30 
Con relación al Sistema de Alerta Rápida para Al imentos y Piensos (RASFF) –descripto en el párrafo 
118-, se observa que la ausencia de un período para responder las notificaciones de rechazos antes de 
que sean publicadas en el RASFF ha causado efectos negativos sobre operadores comerciales, cuyo 
productos han sido notificados sin justificación cien tífica.  Asimismo, se ha detectado falta de 
uniformidad en la aplicación del sistema dependiendo  del punto de entrada del producto a la UE.  
 ¿Ha adoptado la UE alguna medida para mi nimizar los efectos negativos del RASFF?  
 Answer 
The Rapid Alert System for Food and Feed (RASFF) is a concrete and visible result of European integration.  The quick exchange of information about food and feed related risks ensures coherent 
and simultaneous actions by all Member States.  Th is is a major contribution to consumer safety.  
Last January, "Commission Regulation (EU) No 16/2011 of 10 January 2011 laying down 
implementing measures for the Rapid alert system for food and feed" was published [OJ L 6, 11/01/2011, p. 7–10].  Several aspects have been improved with this new implementing rules: 
common rules for duties of the contact points, prov isions concerning the co ordinating role of the 
Commission, including the verification of the notific ations.  In this respect, the Commission should 
also assist members of the network in taking a ppropriate measures by identifying recurrent hazards 
and operators reported in the notifications.  In ca se that, notwithstanding the checks carried out by 
the notifying member and by the Commission, a tran smitted notification turns out to be erroneous or 
unfounded, then a procedure providing for either its amendment or its withdrawal from the system is 
laid down.  Also, the Commission should ensure direct  contact with food safety authorities in third 
countries in order to send out notifications to these third countries and at the same time ensure the 
exchange of relevant information with regard to these notifications and any direct or indirect risk to 
human health deriving from food or feed. 
 
Question 31 
De acuerdo al párrafo 120, la Comisión Europea adop tó un proyecto de reglamento para modificar la 
Directiva 2001/18/EC para permitir a los Estados miem bros la restricción o la prohibición del cultivo 
de OGMs autorizados a nivel europeo. 
 ¿Puede la UE especificar los motivos en los cuales se podrán basar los Estados miembros para restringir o prohibir el cultivo de OGMs autorizados a nivel europeo y sobre los cuales ya se ha realizado una evaluación científica tanto de lo s riesgos sanitarios como medioambientales?  
 Answer 
The European Commission considers that Member States could invoke different kind of reasons 
related to the public interest to restrict or ban GM O cultivation in part or in whole their territory 
such as public moral policy, avoiding GMO pres ence in non-GM products, social policy objectives, WT/TPR/M/248/Add.1 
Page 313 
 
 
  town and country planning/land use, cultural poli cy or general environmental policy objectives other 
than the assessment of the adverse effects of GMOs  on the environment.  All these reasons are 
recognized in the Treaty on the Functioning of the EU , in derived case-law of the European Court of 
Justice or in secondary EU legislation.  Ho wever, the resulting measures have to be non-
discriminatory and consistent with the EU Treaties and WTO obligations, as indicated in a recital of 
the proposed Regulation.  
 Question 32 
¿Además del Grupo de Contacto sobre Comercio, existe n otros foros para las consultas regulares entre 
la Comisión Europea y los agentes económic os sobre asuntos aduaneros de la UE? 
 Answer 
The contact group on trade is the only forum for su ch strictly formal consultations between the 
Commission and industry, but other forums are informal and regular meetings and contacts with industry on customs matters.  
 
Question 33 
En materia de legislación aduanera , ¿cuáles son los principios genera les que   sustentan el derecho a 
los procedimientos de recurso? 
 
Answer 
The general principles are estab lished in the following provis ions of Title VIII (Resources) 
Community Customs Code, Regulation (EEC) No 2913/92 of 12 October 1992.  Please find below the relevant articles: 
 
Article 243 
1. Any person shall have the right to appeal agai nst decisions taken by the customs authorities 
which relate to the application of customs legi slation, and which concern him directly and 
individually.  Any person who has applied to th e customs authorities for a decision relating to the 
application of customs legislation and has not obtained a ruling on that request within the period referred to in Article 6 (2) shall also be entitled to exercise the right of appeal.  The appeal must be 
lodged in the Member State where the deci sion has been taken or applied for. 
2. The right of appeal may be exercised: 
(a) initially, before the customs authorities desi gnated for that purpose by the Member 
States; (b) subsequently, before an inde pendent body, which may be a judicial authority or an 
equivalent  specialized body, according to th e provisions in force in the Member States. 
 
Article 244 
The lodging of an appeal shall not cause implementation of the disputed decision to be suspended. 
The customs authorities shall, however, suspend implem entation of such decision in whole or in part 
where they have good reason to believe that the dis puted decision is inconsistent with customs 
legislation or that irreparable damage is to be fe ared for the person concerned.  Where the disputed 
decision has the effect of causing import duties or export duties to be charged, suspension of 
implementation of that decision shall be subject to  the existence or lodging of a security.  However, 
such security need not be required  where such a requirement would be likely, owing to the debtor's 
circumstances, to cause serious economic or social difficulties. 
 
Article 245 
The provisions for the implementation of the appeal s procedure shall be determined by the Member 
States.  WT/TPR/M/248/Add.1 
Page 314  
 
 Article 246 
This title shall not apply to appeal s lodged with a view to the annulment or revision of a decision 
taken by the customs authorities on the basis of criminal law.  Question 34 
¿Cuáles son los Estados Miembros de la UE que exigen un examen administrativo antes de que una 
decisión pueda ser recurrida por la vía judicial? 
 
Answer 
The EU does not have these data.  
 
Question 35 
Las autoridades de la UE afirman que los procedim ientos aduaneros están to talmente armonizados en 
la UE. Sin embargo, el informe indica que los pr ocedimientos de recurso varían entre los estados 
miembros ¿Podrían aclarar este punto?  Answer 
We fail to understand the intended objective of this question.  However, please note that an appeal 
procedure is not considered in the EU  as a customs procedure strictly.  
 Question 36 
¿Cuáles son las actividades exigidas por el Códi go Aduanero que deben lle var a cabo las personas no 
establecidas en la UE para obtener un número re gistro e identificación de los operadores económicos 
(EORI)?  
Answer 
The provisions on the EORI numbers are provided in  Articles 4k to 4t and Annex 38d of the Customs 
Code Implementing Regulation (Commission Regul ation (EEC) No. 2454/93, 2 July 1993 in the 
consolidated text available here  http://eurlex.europa.eu/Result.do?T1=V1&T2= 1993&T3=2454&RechType=RECH_consolidated&Su
bmit=Search). According to Article 4l paragraph  3 an economic operator not established in the customs territory of 
the Community shall be registered by the customs authority or the designated authority of the Member 
State where he first performs one of the following: 
(a) he lodges in the Community a summary or customs declaration other than any of the following: 
(i) a customs declaration made in accordance with Articles 225 to 238; 
(ii) a customs declaration made for temporary importation or for discharging 
this procedure by re-exportation; (iii) a customs declaration made un der the common transit procedure by an 
economic operator established in a contrac ting party to the Convention on a common 
transit procedure other than the European Uni on, where that declaration is not also 
used as an entry or exit summary declaration; 
(iv) a customs declaration made under the Community transit procedure by an 
economic operator established in Andorra or in San Marino, where that declaration is not also used as an entry or exit summary declaration; 
(b) he lodges in the Community an ex it or entry summary declaration; 
(c) he  operates a temporary storage  facility pursuant to Article 185(1); 
(d) he applies for an authorization pursuant to Article 324a or 372; 
(e) he applies for an authorized economic op erator certificate pursuant to Article 14a. 
 Question 37 
Se solicita a la UE brindar la lista de autori dades encargadas de asignar los números de EORI. WT/TPR/M/248/Add.1 
Page 315 
 
 
  Answer 
The EU TPR report contains in its footnote 11 links to two important documents that provide you with 
the list of authorities responsible for assigning EO RI numbers and explain also the registration 
procedures applied by each Member State.  They are:  1) Document TAXUD D(2009) 1608 rev. 5, 26 
November 201;  and 2) Document TAXUD/2008/1633 rev.2, 23 August 2010. 
 
Question 38 
¿Cuáles son los requisitos de información anticipada que  estableció la UE sobre la carga en el marco 
de las denominadas "modificaciones de protección y seguridad" del Código aduanero? 
 
Answer 
The advance information is submitted by lodging an EN S.  The particulars of the ENS are laid down 
in Annex 30A to CCIP and it shall be completed in  accordance with the explanatory notes to that 
annex.  The ENS must be authenticated by the person lodging it.  
Question 39 ¿Cuáles son las excepciones a la obligación de los transportistas a presentar una declaración sumaria 
de entrada electrónica (ENS) en la "primera Aduana  de llegada" de la UE? ¿Cuáles son los datos que 
deben indicarse en el ENS? 
 
Answer 
Exemptions from ENS apply with regard to postal items, traveller's baggage and other goods as listed 
out in Art; 181c CCIP. The data to be entered in the ENS are laid down in Annex 30A to CCIP 
 Question 40 
¿Cuáles son los criterios que establece la UE para otorgar la condici ón de operador económico 
autorizado? 
 
Question 41 
¿Cuáles son los tipos de certifi cados otorgados a los operadores económicos autorizados y los 
beneficios que corresponden a cada uno de ellos?  Question 42 
¿Cómo es el procedimiento previsto para resolver  los casos de información vinculante divergente 
emitida por dos o más Estados miembros?  
Answer to questions 40-42 
Article 9 of the of the Implementing Provisi ons of the Community Customs Code (Commission 
Regulation (EEC) N° 2454/93 of 2 July 1993 lays dow n the procedures to be followed in cases of 
inconsistencies.  See the following link in Spanish: http://eur-lex.europa.eu/LexUriServ/LexU riServ.do?uri=CONSLEG:1993R2454:20090701:es:pdf. 
 Question 43 
¿Cuáles son las declaraciones de importación que no son aceptadas de conformi dad con el método de 
valoración en aduana? 
 
Answer 
All declarations are accepted with the customs value calculated in acco rdance with one of the 
methods laid down in Article VII of the GATT Agreeme nt.  The rate of declarations accepted with the 
transaction value method is above 90%.   WT/TPR/M/248/Add.1 
Page 316  
 
 Question 44 
Además de la aplicación de restricciones cuantita tivas, contingentes arancelarios NMF, marcas de 
origen, medidas comerciales especiales y contrat ación pública, ¿con que otros fines la UE aplica 
normas de origen no preferenciales? 
 
Answer 
The European Union applies its non-preferential ru les of origin for all of the commercial policy 
instruments referred to in Article 1 (2) of the WTO Agreement on Rules of Origin.  In addition, the 
benefit of export refunds, where applicable in the fr amework of the common agricultural policy, is 
attributed to products of non-p referential European Union origin. 
 
Question 45 
¿Cuáles son los productos industriales que están sujeto s a marcas de origen obligatorias de acuerdo a 
la Propuesta de Reglamento adoptada por el  Parlamento Europeo en Octubre de 2010? 
 Answer 
According to the proposal for a Regula tion issued by the European Commission on 
16 December 2005, the proposed scheme would apply to the categories of products listed in Annex, 
which are those for which prior consultations show ed that there was value-added (e.g. textiles, 
footwear, ceramic products, jewellery, furniture). In its Resolution of October 2010, the European Pa rliament proposed to extend that list to a few 
categories of products (e.g. swords and similar arms ; taps, cock, valves and si milar appliances; etc.), 
but also to limit the coverage of the sch eme to so-called "end-consumers" products. 
 
Question46 
¿Cuáles son las prescripciones específicas en materi a de transformación y valor añadido para las 
nuevas normas de origen revisadas del Sistema Generalizado de Preferencias? 
 
Answer 
The new GSP rules of origin are based on the foll owing approach of origin determination:  first a 
distinction is made between whole obtention and su fficient processing.  Sufficient processing may take 
the following forms and/or a combination of th em depending on the sector: requirement for the 
limitation of the foreign content which ensures the inco rporation of sufficient amount of originating 
materials (or "local value content") in the pr oducts, change of tariff cl assification or specific 
processing operations.  The rules of origin are defined  as far as possible on a sector-by-sector rather 
than a product-by-product basis.  
Question 47 ¿Cuáles son las condiciones que se establecen para  permitir la acumulación de origen entre grupos 
regionales? ¿A qué grupos regi onales se permite esta posibilidad? 
 
Answer 
Cumulation is now possible between individual Group I and Group III count ries, upon request and 
under certain conditions.  It may be granted by the European Commission at the request of the 
authorities of a Group I or Group III beneficiary c ountry.  The request shall be supported with 
evidence that all the required conditions are me t.  It shall be addressed to the Commission.  
The application of such cumulation is conditional upon the fulfilment of the following necessary 
requirements: cumulation member countries have to undertake to comply or ensure compliance with 
GSP rules of origin and to provide the necessa ry administrative cooperati on to ensure the correct 
implementation of those rules both with regard to the European Union and between themselves.  The 
countries to be involved in such regional cumulation should jointly notify the said undertakings to the 
Commission.  WT/TPR/M/248/Add.1 
Page 317 
 
 
  The Commission will decide on the request taking in to account all the elements related to the 
cumulation deemed relevant, includi ng the materials to be cumulated. 
 Question 48 
¿Cuáles son los productos sensibles que están exclui dos de la posibilidad de  acumulación regional? 
 
Answer 
The materials listed in Annex 13b to Commission Regulation (EEC) No 2454/93 (as amended by 
Commission Regulation (EU) No 1063/2010) are excl uded from the regional cumulation in the case 
where: 
(a) the tariff preference applicable in the European Union is not the same for all the countries 
involved in the cumulation; and (b) the materials concerned would benefit, thr ough cumulation, from a tariff treatment more 
favourable than the one they would benefit from if directly exported to the European Union. 
 
Question 49 ¿Qué se entiende por "acumulación "ampliada" y cu áles son las condiciones que debe cumplir un país 
beneficiario del SGP para acceder a ella? 
 
Answer 
Extended cumulation is a system, conditional upon  the granting by the European Commission, on a 
request lodged by a beneficiary country and whereby cert ain materials, originating in a country with 
which the European Union has a free-trade agreeme nt in accordance with Article XXIV of the 
General Agreement on Tariffs and Trade (GATT) in fo rce, are considered to be materials originating 
in the beneficiary country concerned when furt her processed or incorporated in a product 
manufactured in that country.  Extended cumula tion may be granted by the Commission, provided 
that the countries involved in the cumulation have und ertaken, inter alia, to  provide the necessary 
administrative co-operation both with regard to the European Union and also between themselves 
and that the undertaking has been notified to th e Commission by the beneficiary country concerned. 
Materials falling within Chapters 1 to 24 of the Harmonized System are excluded from extended 
cumulation. More information is available in the guide fo r users on GSP rules of origin available at: 
http://ec.europa.eu/taxation_customs/customs/c ustoms_duties/rules_origin/preferential/article_839_e
n.htm.  
 Question 50 
Se solicita a la UE indicar la página Web en la que mantiene en línea una base de datos pública que 
incorpora los tipos arancelarios, las restricciones cuantitativas y medi das especiales, aplicados a las 
importaciones y exportaciones.  
 
Answer 
The online customs tariff database, also called th e TARIC, is a multilingual database in which all 
measures relating to tariff, commercial and agricultu ral legislation are integrated.  By integrating 
and coding these measures, the TARIC secures their un iform application by all Member States and 
gives all economic operators a clear view of all measures to be undertaken when importing or 
exporting goods.  
Daily transmissions of TARIC data via an elect ronic network guarantee immediate and correct 
information for the national administrations of the Member States, who use this data mainly to feed 
their national systems for customs clearance, wi th the goal of maximising automatic customs 
clearance. 
The database is available online (daily  updated) under the following address: 
http://ec.europa.eu/taxation_customs/dds2 /taric/taric_consultation.jsp?Lang=en. WT/TPR/M/248/Add.1 
Page 318  
 
 Tariff quotas constitute an exception to the normal stat e of affairs since they permit, during the period 
of validity of the measure and for a limited quantity,  the total (total suspension) or partial waiver 
(partial suspension) of the normal duties applicabl e to imported goods (antidumping duties are not 
affected by these suspensions). 
Information about the current balances (daily updat ed) of those tariff quotas which are managed on a 
first-come first-served basis is available under the following address: 
http://ec.europa.eu/taxation_customs/dds2/taric/quota_index.jsp?Lang=en. 
 Question 51 
En qué casos y bajo qué criterios el Consejo de  la UE puede aprobar contingentes arancelarios 
"autónomos"? ¿Cuáles son los productos que actualmente están sujetos a suspensiones ar ancelarias "autónomas"? 
 
Answer 
The guiding principles and criteria for the implem entation of autonomous tariff suspensions and 
quotas are contained in the document mentioned in footnote 45 of the Report, i.e.  European 
Commission document 98/C 128/02 (OJ C 128/2, 25 Ap ril 1998).  The Spanish version of this 
document can be retrieved electroni cally in the following link:  
http://eur-lex.europa.eu/LexUriServ/Le xUriServ.do?uri=OJ:C: 1998:128:0002:0010:es:pdf. 
 
A Spanish version of the consolidated Council Regula tion (EC) No 1255/1996 containing a list of 
products subject to autonomous tariff suspensi ons is found under the following address:  
http://eur-lex.europa.eu/LexUriServ/LexU riServ.do?uri=CONSLEG:1996R1255:20110101:es:pdf. 
 
Question 52 
¿Cuáles son los productos importados que están ex entos del pago del Impuesto al Valor Agregado 
(IVA)? ¿En qué circunstancias los Estados Miembros de la UE pueden apar tarse de las normas relativas al 
IVA?  
¿Cuáles son los casos que ya han sido autorizados po r el Consejo de la UE para apartarse de estas 
normas? 
 
Answer 
Exemptions are provided for in Title IX of Direc tive 2006/112.  The different categories of exemptions 
are the following: 
- exemption of activities in the public interest ( public postal services, health, education…), 
- exemption of other internal transactions (not ably bank and insurance activities, immovable 
property other than before the first occupation), 
- exemption of exports as well as other transactions treated as ex ports (for ex.:  supplies to 
international bodies), 
- exemption relating to international transport, 
- exemption of transactions relating to international  trade (such as activities taking    place in 
customs warehouses and similar arrangements). 
- exemption of intra-community supplies of goods, 
- refer to specific import exemptions pursuant to directive 2009/132 & 2006/79. 
Member States can request special authorizatio n under Article 395 of Directive 2006/112/EC to 
derogate from the common VAT rules. The following websites can also be consulted: 
- Directorate General Taxation and Customs Union (DG TAXUD): 
http://ec.europa.eu/taxation_cus toms/taxation/vat/index_en.htm. 
- Europa: http://europa.eu/index_en.htm. 
- Europa Policy areas:  http://e uropa.eu/pol/tax/index_en.htm. WT/TPR/M/248/Add.1 
Page 319 
 
 
  Question 53 
¿Cuáles son los tipos mínimos establecidos por la UE para aplicar el impuesto especial sobre el 
consumo y la base sobre la cual éste debe calcularse? 
 
Answer 
Excise duties in the EU for the following  products are subject to harmonization: 
 alcohol and alcoholic beverages covered by Directives 92/83/EEC and 92/84/EEC, 
 manufactured tobacco covered by Directives 95/59/EC, 92/79/EEC and 92/80/EEC and 
 energy products and electricity covered by Direc tive 2003/96/EC (motor fuels and heating fuels, 
such as petrol and gasoline, electri city, natural gas, coal and coke). 
 
For all of these products minimum rates are provided  for in EU legal acts. Member States are free to 
introduce excise duty rates above the minima as long as they are in line with the EU legal 
requirements.  In special cases derogations from the minimum rates, reductions and exemptions are 
also allowed.  The tax base and the mi nimum rates for the energy products  are laid down in Directive 2003/96/EC. 
The minimum rates depend on the use of the produ ct – motor fuels are ge nerally taxed more than 
heating fuels.  Most energy products are taxed per volume, but some are taxed per weight or energy 
content.  More information is available on the website of the Commission: http://ec.europa.eu/taxation_customs/taxati on/excise_duties/energy_products/index_en.htm. 
 As regards tobacco products , the minimum rates depend on the type of product.  The following 
minimum rates are currently applicable for the tobacco products in the EU: 
 
 Cigarettes 
Currently applied minimum rates for cigarettes: EUR 64 per 1000 cigarettes of the weighted 
average price (WAP) with an incidence of 57% of the retail selling price inclusive of all taxes 
(TIRSP).  As from 1/1/2014:  EUR 90 per 1 000 cigarettes irrespective of the WAP with an overall  
excise duty of at least 60% of the WAP (gradual increase). 
 
 Fine-cut smoking tobacco 
Currently applied rates for fine-cut tobacco:  40%  of the WAP or at least EUR 40 / kg. 
- As from 1 January 2013:  43%  of the WAP or at least EUR 47 / kg. 
- As from 1 January 2015:  46%  of the WAP or at least EUR 54 / kg. 
- As from 1 January 2018:  48%  of the WAP or at least EUR 60 / kg. 
- As from 1 January 2020:  50% of the WAP or at least EUR 60 / kg. 
 
Cigars and cigarillos 
Minimum rate: 5% of the TIRSP or EUR 12 per 1000 items or per kg.  
Smoking tobacco  (other than fine-cut tobacco) 
Minimum rate: 20% of the TIRSP or EUR 22 per kg. 
Further information on tobacco products can be found at:  http://ec.europa.eu/taxation_customs 
/taxation/excise_duties/tobacco_products/index_en.htm   As regards alcohol and alcoholic beverages , Council Directives  1) 92/83/EEC, on the harmonization 
of the structures and 2) 92/84/EEC, on the approxima tion of the rates of excise duty on alcohol and 
alcoholic beverages apply.  The minimum rates vary  depending on the type of product.  The following 
five categories of products are established:   
• Beer; 
• Wine; WT/TPR/M/248/Add.1 
Page 320  
 
 • Fermented Beverages other than Wine and Beer; 
• "Intermediate Product" (e.g. port, sherry); 
• Ethyl alcohol. 
Under Council Directive 92/83/EEC, member States may levy reduced excise duty rates in few cases 
mainly on beer and ethyl alcohol produced by small domestic breweries and distilleries, as defined in 
the Directive.  Reduced rates may be lower than the minimum rates defined in EU legislation, but 
cannot be less than half the rate of the standard excise duty on these products. Further information for alcohol and alcoholic beverages can be found at: http://ec.europa.eu/taxation_customs/taxation/ excise_duties/alcoholic_b everages/index_en.htm. 
 
The Excise Duty Tables published by the Commissi on contain the rates of excise duty on alcoholic 
beverages, tobacco, and energ y levied by Member States.  
 Question 54 
Aparte del IVA y los impuestos especiales de consum o, ¿qué otros impuestos gravan la importación 
de productos? 
 
Answer 
No taxes with equivalent effect to custom duties are allowed so in genera l there is no special tax 
treatment of imported products. 
Excise duties in the EU for the following  products are subject to harmonization: 
- alcohol and alcoholic beverages covered by Directives 92/83/EEC and 92/84/EEC; 
- manufactured tobacco covered by Directives 95/59/EC, 92/79/EEC and 92/80/EEC;  and, 
- energy products and electricity covered by Directive 2003/96/EC (motor fuels and heating 
fuels, such as petrol and gasoline, electricity, natural gas, coal and coke).  
However, Member States may l evy other indirect taxes on ex cise goods for specific purposes, 
provided that those taxes comply with the Commun ity tax rules applicable for excise duty or value 
added tax but cannot levy taxes on products which are tax exempt according to the EU legislation. 
Member States may also levy such taxes on products other than excise goods.  However, the levying of such non-harmonized taxes may not, in trade between Member States, give 
rise to formalities connected with the crossing of frontiers. 
As these taxes are not harmonized in most cases Member States are not obliged to inform the 
Commission of their introduction. So there is no thorough overview of all taxes levied on imported products as well.  Useful information on the taxes levied by individual Member States provided by them is available on 
the website of the Commission via this page:  http ://ec.europa.eu/taxation_customs /taxation/gen_info 
/info_docs/tax_inven tory/index_en.htm. 
 Question 55 
¿En qué consisten las nuevas normas de comitol ogía entraron en vigor en marzo de 2011 y que 
repercuten en la adopción de medidas antidumping y derechos compensatorios? 
 
Answer 
Regulation (EU) No 182/2011 laying down the rul es and general principles concerning mechanisms  
for control by Member States of the Commission's ex ercise of implementing powers ("the Comitology 
Regulation") has shifted the power for adopting implem enting acts (such as the adoption of definitive 
AD and CV measures) from the Council to the Eur opean Commission.  That means that trade remedy 
investigations will still be conducted by the Commi ssion but that trade remedy measures will be 
applied by the Commission instead of the Council.  However, the Comitology Regulation foresees that 
the Commission's exercise of implementing powers will be  subject to control by the Member States WT/TPR/M/248/Add.1 
Page 321 
 
 
  through its Article 8 for provisional measures and through the examination procedure for definitive 
measures.   In order to align the basic anti-dumping and anti-s ubsidy Regulations to the Comitology Regulation, 
the Commission has made a proposal to the European Parliament and Council (the co-legislators) on 
7 March 2011 for a Regulation amending certain regulations relating to the common commercial 
policy as regards the procedures for the adoptio n of certain measures (COM(2011) 82 final of 
7.3.2011, 2011/0039 (COD)) ("th e Omnibus proposal").  Until the co-legislators adopt the Omnibus 
proposal, trade remedy measures will continue to be  applied by the Council.  The discussions within 
the co-legislators are still at an early phase and therefore it is not yet clear when the Omnibus 
proposal will be adopted. 
 Question 56 
Según el informe, la UE sólo puede imponer medi das antidumping si la Comisión determina que la 
medida no es contraria al interés general de la ec onomía de la UE.  Desearíamos conocer en qué casos 
se considera que medida no es contraria al interés general de la economía de la UE. 
 
Answer 
The legal basis for the Community interest test is Art. 21 of the basic anti-dumping Regulation, which 
calls for an "appreciation of all the various interests taken as a whole".  In this global appreciation, 
the need to eliminate the trade distorting effect s of injurious dumping and to restore effective 
competition  is given special consideration.  The test to be  carried out by the Community Institutions is 
whether it can be clearly concluded that it is not in the Community interest to apply such measures. 
Firstly, of an evaluation of the likely consequen ces of the application or non-application of the 
envisaged measures on the interests of the Community  industry and of other parties covered by the 
scope of Article 21.  This means basically that a prospective assessment has to be made in order to 
establish for each group of economic operators the likely effect of taking or not-taking measures. 
While such prognosis has to work with hypotheses, it is not speculative but based on factual data and 
evidence.  Secondly, all the different interests examined have to be  balanced against each other.  In other words, 
it must be found that the disadvantage to the other interested parties would be clearly disproportionate to any advantages given to the Co mmunity industry by the imposition of measures.  
 
Question 57 
¿Cuáles son los productos textiles que están ex cluidos del alcance del régimen general de 
salvaguardias? 
 
Answer 
According to the EU Regulation on Safeguards (E C) No. 260/2009 of 26 February 2009, the textile 
products covered by Council Regulation (EC) No 517/94 of 7 March 1994 on common rules for imports of textile products from certain third countries not covered by bilateral agreements, protocols 
or other arrangements, or by other specific Commun ity import rules are subject to special treatment 
at Community and international level.  They shoul d therefore be excluded from the scope of the 
above-mentioned EU Regulation on Safeguards.  For more details and the list of textile products:  
http://eur-lex.europa.eu/LexUriServ/LexUri Serv.do?uri=CONSLEG:1994R0517:19940701:en:pdf. 
 Question 58 
¿En qué consiste el sistema de vi gilancia para las importaciones de  productos del acero y por qué se 
considera que aumenta la "transparencia  de las tendencias de las importaciones? 
 WT/TPR/M/248/Add.1 
Page 322  
 
 Answer 
By Regulation (EC) No 76/2002 the Commission in troduced prior Community surveillance of imports 
of certain iron and steel products originating in thir d countries.  This regulation was last extended by 
the Commission Regulation (EU) No 1241/2 009 of 16 December 2009 and shall run until 
31 December 2012. This steel import licence mechanism  gives an early indication of the steel import 
flows into the EU in the following months.  The licence is free and automatic and does in no way 
constitute a limitation to market acce ss.  This has been confirmed by  the smooth running of the system 
since its start in 2002.  The analysis for the need to continue the system beyond end 2012 has not yet 
been made. Monthly reports of steel volumes li censed by region of origin and product group are 
published on the DG Trade website. 
 
This surveillance mechanism is deem ed to be necessary due to continuous volatility of the global steel 
markets and shifts in steel trade flows in particular in  terms of an economic crises.  While it is true 
that the unprecedented slump of the steel market in 2009 has been somewhat compensated by more 
favourable developments in 2010 and 2011, there are still considerable uncertainties in the market on 
top of some significant trade flow shifts and chang es in the raw material supply.  Developments 
related to the major steel producing counties such as China, Russia, Ukraine and Turkey have 
significant potential in this respect.  Therefore, th e EU does not consider it appropriate to end this 
transparency instrument earlier than anticipated.  There are no specific rules for defining the length 
of the limited period.  
 
Question 59 ¿Cuáles son los Reglamentos que establecen las moda lidades de los contingentes arancelarios para las 
importaciones? 
 
Answer 
The vast majority of tariff quotas are managed by  the Commission's Directorate-General responsible 
for Taxation and Customs Union on a "first-come fir st-served" basis irrespec tive of where the goods 
are imported into the EU.  The legal provisions governing the management of these tariff quotas are 
contained in Articles 308a to 308c of Regulatio n (EEC) 2454/93 laying down provisions for the 
implementation of the Community Customs Code.  
Question 60 ¿En qué consiste la asistencia técnica que, se gún la UE, presta a los países en desarrollo para 
ayudarlos a cumplir los requisitos en materia de re glamentos técnicos? ¿A qué países y en virtud de 
qué reglamentos se ha aplicado esta asistencia?  Answer 
With regards to Latin American countries, the EU development cooperation activities are carried out, 
at a bilateral level, within the framework of the Regulation (EC) No 1905/2006 of the European 
Parliament and of the Council of 18 December 2006 establishing a financing instrument for development cooperation, which main ob jective is the fight against poverty. 
 
Sub-regional organizations (CAN – Comunidad A ndina de Naciones, Mercosur – Mercado Común 
del Sur as well as SICA –Sistema de Integración de Centroameric a) have benefited the most from 
EU's assistance in the field of technical standards. Cooperation in the field of technical standards has 
included a number of projects, ranging from trade -related technical assistance (TRTA), sanitary and 
phyto-sanitary standards to customs cooperation. 
 
Details on the EU's bilateral cooperation w ith Latin American countries and sub-regional 
organizations are spelled out in the Country/Regional  Strategy Papers, which are publicly available 
on the website the European External Action Service (http://eeas.europa.eu/). 
 WT/TPR/M/248/Add.1 
Page 323 
 
 
  Question 61 
¿Cuál es la legislación de "armonización plena" de la UE? 
¿Cuáles son los productos que no están abarcados po r la legislación de "armonización plena", y por 
consiguiente susceptibles de estar sujetos a regl amentos o procedimientos de evaluación de la 
conformidad distintos entre los Miembros de la UE?   Answer 
As mentioned in para. 85 (p. 51) of Chapter III of  the Report by the Secretariat, the requirements 
relating to technical regulations and conformity assessment proce dures harmonized at EU level are 
listed by sector in the Export Helpdesk website of the Commission.38  In addition, an overview of EU 
legislation relating to various industrial produc t areas is available on the website of the 
Commission's Directorate-Genera l for Enterprise and Industry.39 
For an overview of the legislati ve initiatives scheduled for adoption at EU level for 2011 and those 
planned for the period 2012-2014, please refer to the Commission Work Programme 2011 and its Annexes, available at: http://ec.eur opa.eu/atwork/programmes/index_en.htm. 
As provided for in Recital 35 and Article 12 of Regulation (EC) No 764/2008, the Commission has 
established an indicative, non-exhaustive list of produc ts which are not subject to harmonization at 
EU level.  This list can be consulted on line  at: http://ec.europa.eu/enterprise/intsub/a12/. 
Question 62 
¿Cuáles son los productos considerados de "alto riesg o", para los cuales la UE exige la evaluación de 
la conformidad de terceros? 
 
Answer 
The products subject to third-party conformity a ssessment in the EU are t hose deemed to present a 
significant safety, health or environmental risk.  In general, the type of conformity assessment 
procedure to be applied is related to the risks of  products in relation to their intended use.  
 
Under the scope of the EU's New Approach legisl ation, such products include e.g. structural 
construction products, lifts, cablewa ys, measuring instruments, non-aut omatic weighing instruments, 
explosives for civil uses, pyrotechnic articles, so me categories of equipment for use in explosive 
atmospheres, the majority of p ressure vessels and equipment, gas app liances, some medical devices, 
active implantable medical devices, some types of personal protective equipment, certain types of 
machinery for which harmonized standards covering all relevant risks do not yet exist or have not 
been fully applied by the manufacturer, certain ty pes of toys (same criteria as for machinery).  
Specific type-approval procedu res exist for motor vehicles.  
 Question 63 
¿Existe un sitio Web en donde puedan encontrarse los organismos de certificación, inspección y 
prueba autorizados por la UE? 
 
Answer 
All Notified Bodies operating under the EU's New Appr oach legislation are listed in the Nando (New 
Approach Notified and Designated Organizations ) Information System, accessible at: 
http://ec.europa.eu/enterprise/newapproach/nando/ .  The data base contains multiple search 
functions by directive, country, etc.  
                                                      
38 Export Helpdesk online information.  Viewed at:  http://exporthelp.europa.eu/index_en.html. 
39 See, for example:  http://ec.europa .eu/enterprise/sectors/index_en.htm. WT/TPR/M/248/Add.1 
Page 324  
 
 Question 64 
¿En qué consisten los controles que pueden llevar a cabo las auto ridades aduaneras para que un 
producto pueda comercializarse en la UE en virtud del Reglamento Nº 765/2008? 
 
Answer 
It must be clarified that the text provided in pa ra. 91 of the Report by the Secretariat is not fully 
accurate and, for consistency with the wording of Article 27(1) of Regulation No. 765/2008, should in 
fact have read as follows:  "In addition to a common accreditation framewo rk, Regulation No. 765/2008 sets out common 
principles for market surveillance.   According to the Commission, a majority of member States have 
made legal and administrative changes to meet these requirements.
40  Under the Regulation, the 
authorities in charge of the control of  products entering the Community market  shall carry out 
"appropriate checks on the characteristics of pr oducts on an adequate scale" before those products 
can be marketed in the EU.41" 
In fact, for goods imported into the EU, the effort s carried out by enforcement authorities in the EU to 
ensure that only safe and compliant products are pla ced on the EU market is an exercise that involves 
both  Market Surveillance Authorities as well as Customs.  Guidelines have been developed for use by both Customs and Market Surveillance Authorities of the 
EU Member States to ensure that this task is ca rried out appropriately.  The guidelines provide for 
the necessary tools for EU Me mber States to ensure adequate co operation between these authorities, 
independently of the organizational structure of th e different Member States.  They also provide core 
information to Customs Authorities allowing them  to screen goods on product safety and compliance 
requirements and the required follow up  to be given to goods when there are indications that these 
goods may be non-compliant or unsafe.  
 
On the notions of "appropriate checks on the c haracteristics of products on an adequate scale", 
discussions are on-going with national authorities to  determine in practice what this will mean 
concretely.  In other words the notion of samp ling and the identification of the most appropriate 
control are still under examination with the objective of being as less burdensome as possible for 
trade flows but effective in id entifying non complying products. 
 
(2) M
EDIDAS QUE AFECTAN DIRECTAMENTE A LAS EXPORTACIONES  
Question 65 
¿Cuál es el procedimiento para obtener el Regi stro de Identificación de Operadores Económicos 
(EORI),  que se menciona en el párrafo 123?  
Se exigen declaraciones de exportación de cargame nto marítimo,  en contenedores, sin embargo el 
Reglamento de Aplicación prevé excepciones. ¿C uáles son esas excepciones? En qué casos se 
otorgan? ¿Ha entregado la autoridad aduane ra con regularidad este tipo de excepciones? 
 
Answer 
EORI 
The EU TPR report contains in its footnote 11 links to two important documents that provide you with 
the list of authorities responsible for assigning EO RI numbers and explain also the registration 
                                                      
40 European Commission document ENTR/C1/McM/nt ARES.c1(2010).  Viewed at:  http://ec.europa. 
eu/enterprise/policies/single-market-goods/files/new-legi slative-framework/nlf_ implementation_report_en.pdf. 
41 Article 27(1), Regulation (EC) No. 765/2008 of the European Parliament and of the Council, 
9 July 2008. WT/TPR/M/248/Add.1 
Page 325 
 
 
  procedures applied by each Member State.  They are 1) Document TAXUD D(2009) 1608 rev. 5, 
26 November 2010 and 2) Document TAXUD/2008/1633 rev.2, 23 August 2010. 
Exemptions - Exit summary declaration 
Article 842a An exit summary declaration shall not be required in the following cases: 
(a) the cases listed in Article 592a(a) to (m); 
(c) goods entitled to relief pursuant to the Vi enna Convention on diplomatic relations of 
18 April 1961, the Vienna Convention on consular relations of 24 April 1963 or other consular 
conventions, or the New York Convention of 16 December 1969 on special missions. 
Article 592a 
Articles 592b to 592f shall not apply to the following goods: 
(a) electrical energy; (b) goods leaving by pipeline; (c) letters, postcards, printed matter, including on electronic medium; (d) goods moved under the rules of the Universal Postal Union Convention; 
(e) goods covered by a customs declaration made by any other act in accordance with Articles 
231, 232(2) and 233, except pallets, containers, and means  of road, rail, air, sea and inland waterway 
transport carried under a transport contract;  (f) goods contained in travellers' personal luggage; (g) goods for which an oral decl aration is permitted in accordance with Articles 226, 227 and  
229(2), except pallets, containers, and means of road , rail, air, sea and inland waterway transport 
carried under a transport contract; 
(h) goods covered by ATA and CPD Carnets; (i) goods moved under cover of the form 302 pr ovided for under the Convention between the 
Parties to the North Atlantic Treaty regarding the Status of their Forces, si gned in London on 19 June 
1951; 
(j) goods carried on board vessels of regular shipping services, duly certified in accordance with 
Article 313b; and goods on vessels or aircraft moving between Community ports or airports without 
any intervening call at any port or airport out side the customs territory of the Community; 
(k) weapons and military equipment br ought out of the customs territory of the Community by the 
authorities in charge of the military defence of a Member State, in military transport or transport 
operated for the sole use of the military authorities; 
(l) the following goods brought out of the custom s territory of the Community directly to drilling 
or production platforms operated by a person establis hed in the customs territory of the Community: 
(i) goods to be used for construction, re pair, maintenance or conversion of such  
  platforms; 
(ii) goods to be used to fit or equip the said platforms; 
(iii) provisions to be used or consumed on the said platforms; 
(m) goods in a consignment the intrinsic value of  which does not exceed EUR 22 provided that the 
customs authorities accept, with the agreement of the economic operator, to carry out risk analysis 
using the information contained in, or provided  by, the system used by the economic operator. WT/TPR/M/248/Add.1 
Page 326  
 
 Question 66 
Las declaraciones de exportación deben  contener da tos de seguridad prescriptos en el apartado a) del 
anexo 30 del Reglamento de aplicación del código a duanero comunitario, sin embargo los operadores 
económicos autorizados estas prescripciones son me nos estrictas. Que tipo de información se le 
solicita a la operadores económicos autorizados  en relación con los datos de seguridad? 
 Answer 
The request for information concerning export sa fety and security dataset stemming from an 
Argentinean trader may imply two different situations:  
a) In case of an export dispatched in Argentina  with a destination inside the customs territory of 
the EU  In this case the AR trader has to lodge an Entry Su mmary Declaration at the customs office of first 
entry (i.e. the customs office responsible for the por t where the goods enter the customs territory of 
the EU for the first time).  In case of deep-see cont ainerised shipments, the ENS needs to be submitted 
24 hours before the goods are loaded in the means of transport coming to the EU.  Taking into account that there's no agreement signed between th e EU and Argentina on the mutual recognition of 
AEO status yet, AR traders cannot benefit from the re duced dataset offered fo r AEO-s, so they have to  
lodge an ENS with full dataset, as provided fo r in Commission Regulation (EEC) No. 2454/1993, 
Annex 30a Table 1. 
 
b) In case of an export operation dispatched by an Argentinean company established in the EU (export from EU to Argentina)  In this case the export declaration needs to be co mplemented by safety and security data according to 
Annex 30a) Table 1.  In case the exporter (AR company established in EU) has obtained the AEO 
status, it is entitled to benefit from the facilitation of reduced dataset.  In this case the dataset 
provided for in Annex 30a) Table 5 shall be applicable. 
 
Argentinean traders can consult the European Customs Information Portal where they can find all 
sorts of useful information in relation with th e Safety and Security Amendment to the Community 
Customs Code. 
 Question 67 
Por favor mencionen ejemplos de medidas de po lítica exterior y seguridad que podrían aplicar los 
Miembros para restringir o controlar una expor tación? ¿Quién define este tipo de medidas? 
 Answer 
Article 12 of Regulation 428/2009 establishing an  EU export control regime for dual-use items 
specifies that when deciding whether or not to grant export authorizations for controlled dual-use items, Member States shall take into account severa l considerations including those of national 
foreign and security policy.  Under Council Co mmon Position 2008/944/CFSP of 8 December 2008, 
such considerations may inter alia include such issues as: 
 - Respect for the international obligations and commitments of Member States, in particular the sanctions adopted by the UN Security C ouncil or the European Un ion, agreements on non-
proliferation and other subjects, as well as other international obligations. 
 
- Respect for human rights in the country of final d estination as well as respect by that country of 
international humanitarian law.  - Preservation of regional peace, security and stability. WT/TPR/M/248/Add.1 
Page 327 
 
 
  It is up to each EU Member State to practica lly apply these measures in line with its foreign and 
security policy.   Question 68 
Se controlan las exportaciones de productos de "doble uso", sin embargo los Estados Miembros 
pueden imponer controles a la exportación de artícul os no incluidos en la Lista de productos de doble 
uso, bajo ciertas condiciones. ¿Podría la UE exp licar que se entiende por la expresión "bajo ciertas 
condiciones" y cuáles serían esas condiciones?  
 
Answer 
EU Member States may impose so-called end-use contro ls (or catch-all controls), that is introduce 
authorization requirements for the export of non-listed  items, in situations specifically set out in 
Article 4 of Regulation 428/2009 establishing an EU export control regime for dual-use items. These 
include:  
- If the items in question are or ma y be intended, in their entirety or in part, for use in connection with 
the development, production, handling, operation, maintenance, storage, detection, identification or 
dissemination of chemical, biological or nuclear we apons or other nuclear explosive devices or the 
development, production, maintenance or storage of missiles capable of delivering such weapons. 
 - If the items are to be exported to a destination that is subject to an arms embargo decided by the 
EU, the OSCE or the UN Security Council, and the ite ms in question are or may be intended, in their 
entirety or in part, for a military end-use.  - If the items in question are or may be intended, in their entirety or in part, for use as parts or 
components of military items listed in the national  military list that have been exported from the 
territory of an EU Member State without authoriza tion or in violation of an authorization prescribed 
by national legislation of that EU Member State.  Additionally, under Article 8, Member States may cre ate additional national lists of controlled items 
for reasons of public security or  human rights considerations.  
 
Question 69 ¿Por qué la UE considera que el actual sistema de control de exportaciones no es equitativo y poco 
transparente? ¿Podrían brindar mayores detalles?  
Answer 
The European Commission had concerns as regar ds the transparency of national general export 
authorizations as explained in its 2008 proposal fo r new EU-wide general export authorizations.  The 
Commission's concerns referred to varying national practices as re gards the conditions and scope of 
national general export authorizations used by some Member States, and to the exchange of 
information among Member States in this regard.   The Commission's con cerns have been addressed 
during the negotiations concerning new EU-wide genera l export authorizations, that should come into 
force by the end of 2011. 
 Question 70 
¿Está la UE revisando los programas de diseño y desarrollo de aviones AIRBUS A380 financiados 
por Alemania, España y Reino Unido, a los efectos de ponerlos en consonancia con las normas de la 
OMC y con las recomendaciones del panel? 
 
Answer 
The European Commission, together with the Memb er States concerned – including Germany, Spain 
and the United Kingdom – is closely examining the findings made by the Panel in case DS 316, as WT/TPR/M/248/Add.1 
Page 328  
 
 amended by the Appellate Body in its Report on the case, and will be taking the necessary steps to 
comply with the Recommendations of  the WTO DSB in this dispute. 
 Question 71 
El sistema de reintegros previsto exceptúa a los importadores de pagar los derechos de importación 
para aquellos productos que sean reexportados. ¿Podrí a la UE indicar las contribuciones financieras 
efectuadas por esta excepción al pago del arancel que en otro caso se hubiera percibido? 
 
Answer 
We confirm the statement from the Report by the Se cretariat that "the Commission indicates that there 
are no data on the value of repayments under the drawback system.  In addition, the Commission 
notes that drawback has not played an important role in the EU."  Question 72 
¿Podrían explicar cómo funciona el procedimiento simplificado de la "cláus ula de salvaguardia del 
seguro de exportación a corto plazo"? 
¿Podrían explicar cuáles son los planes de fo mento de las exportaciones a nivel nacional y 
subnacional? 
 
Answer 
Under the temporarily simplified pro cedure for invoking the "escape clause" stipulated in Point 4.4. 
of the Commission Communication on Short Term Expor t Credit Insurance, use of the escape clause 
is considered justified  
 if a large well-known international private export credit insurer and a national credit insurer 
produce evidence of the unavailability of  the unavailability of such cover or  
 at least four well-established exporters in the Me mber State in question will produce evidence 
of refusal of cover from insurers for specific operations.  
The evidence in question as well as the intended support measures are notifie d to the Commission for 
decision. 
 There are no export promotion measures forese en under the EU's export credit policy.  
 
(3) M
EDIDAS QUE AFECTAN A LA PRODUCCIÓN Y EL COMERCIO  
Question 73 
Si bien el promedio de obstáculos jurídicos y admi nistrativos a la iniciativa empresarial en la UE son 
menores a los del resto de países de la OCDE, sería importante enumerar cuáles son estos obstáculos. 
 
Answer 
Legal and administrative barriers to entrepreneurship c an be very diverse.  Every direct or indirect  
legal or administrative rule or requirement  than can make cross-border services and establishment 
more difficult is a potential barrier that needs to  be assessed and solved if found disproportionate. 
 In the EU, notably in the process of elaboratin g and implementing the Services directive, some 
obstacles have been identified and various solutions  have been proposed in order to reduce or 
suppress these barriers.  We can mention some of the obstacles which needed  to be tackled.  For 
instance, legal form requirements constitute serious obstacles to the freedom of establishment in the 
sense that they limit the choice of business models and particularly affect service providers from other 
Member States, which may not be able to establis h unless they change their legal form or operate 
through a subsidiary.  Requirements fixing a mini mum number of employees can be also considered 
as obstacles, as these are burdensome for businesses,  which may need to employ more staff when 
entering markets in different Member States.  This is particularly so for small and medium-sized WT/TPR/M/248/Add.1 
Page 329 
 
 
  enterprises, which normally have a limited number of staff and may not be able to hire more.  This 
could easily prevent SMEs from establishing or pr oviding services in Member States imposing such 
requirements.  As noted above, the EU is stepping up efforts in order to appropriately tackle all these obstacles.  
 
Question 74 
El tratado de funcionamiento de  la UE prohibe restricciones a los movimientos de capitales entre 
Estados Miembros de la UE y entre Estados mi embros y terceros país es. Sin embargo rigen 
excepciones. ¿Podrían explicar cuáles son esas excepciones? 
 
Answer 
The Treaty (Art. 63 TFEU) establishes the principle of an open investment regime.  Nevertheless, this 
principle is not unlimited and a number of excepti ons are expressly stipulated in the Treaty:  
EU level:  Under Article 64 (2) + (3) TFEU, EU measures can be adopted (by qualified majority or, 
if such measures "constitute a step backward in Union law as regards the liberalisation of the 
movement of capital to or from third countries", by  unanimity) on the movement of capital to or from 
third countries involving direct investment, establis hment, the provision of financial services or the 
admission of securities to capital markets.  No such  measures have been taken since this provision 
was included in the Treaty in 1994. 
Member States' level:  Article 64(1) TFEU allows Member States to continue to apply restrictions 
which existed on third countries in respect of the movement of capital to or from third countries 
involving direct investment on 31/12/1993 (31/12/1999 for some Member States).  Moreover, Articles 
65(1b) and 52 TFEU give Member States the possibility  to take restrictive measures if justified by 
public policy or public security reasons.  However,  it should be noted that, according to CJEU 
jurisprudence, exceptions to the fundamental Treaty  principles must be construed narrowly, and the 
measures taken must be suitable, proportionate, transparent, and subject to judicial review.  In 
addition, the CJEU has established (e.g. case C- 54/99, Scientology, §17) that "…those grounds 
must…be interpreted strictly, so t hat their scope cannot be determined unilaterally by each Member 
State without any control by the Community institutions." 
 Question 75 
En circunstancias excepcionales el Consejo puede adoptar medidas de salvaguardia temporales que 
limiten los movimientos de capitales con terceros países. Podría la UE indicar en que caso una 
circunstancia se considera "Excepcional"?  
Answer 
Article 66 TFEU does not specify the kind of me asures which may be taken under this safeguard 
provision.  Thus there is no limitation to certain inst ruments.  However, it shou ld be underlined that 
these provisions may only be invo ked- in exceptional circumstances 
- where "movements of capital to or from thir d countries cause, or threaten to cause, serious 
difficulties for the operation of economic and monetary union" - for a very limited period of time (not 
exceeding 6 months) - if such measures are "strictly necessary". 
No measures pursuant to Article 66 TFEU have been taken since this provision was included in the 
Treaty in 1994. 
 
Question 76 Si bien el informe señala que la UE mantiene una política de trato nacional con relación a la Inversión 
Extrajera Directa (IED, se aplican r estricciones a sectores específicos.  Podrían indicar cuáles son esos 
sectores?  WT/TPR/M/248/Add.1 
Page 330  
 
 Answer 
The principle of an open investment regime establis hed by the Treaty (Art. 63 TFEU) is not unlimited 
and a number of exceptions are expressly stipulat ed in the Treaty (e.g. Article 346 TFEU excludes 
trade in arms, munitions and war material from th e application of Treaty rules) and other exceptions 
have been developed by the case law of the Cour t of Justice of the European Union (CJEU).  
 
In accordance with Article 64(1) TFEU, Member Stat es may maintain restrictions on FDI, provided 
they existed since 31/12/1993 (31/12/1999 for some Member States).  Member States are also bound by international obligations, such as GATS or  the OECD Codes on Liberalization of Capital 
Movements and Current Invisible Operations, whic h may render Member States' provisions 
inapplicable.  
In any case, it should be considered that under EU  law Member States remain free to decide whether 
they privatise or not.  Question 77 
¿Por qué la legislación alemana, en relación a las i nversiones extrajeras, difiere sustancialmente de la 
legislación comunitaria?  
Answer 
The German law (paragraph 7 Aussenwirtschaftsgeset z, as published in BGBl I, p. 1150, of 
27/05/200942) has the objective of investigating and prohibiting the acquisition of resident companies 
by non-EU acquirers, if this is indispensable in or der to protect the public order or security of 
Germany in the sense of Articles 46 and 58(1) of th e EC Treaty (now Articles 52 and 65 TFEU);  this 
requires a genuine and sufficiently serious threat, affecting one of  the fundamental interests of 
society. 
 
Thus the German law, while requiring a genuine and sufficiently serious threat,  explicitly refers to EU 
law.  According to standing jurisprudence of the Court of Justice of the European Union, this notion 
is to be interpreted narrowly and excludes purely economic reasons. 
 Question78 
¿Cuáles son los sectores considerados sensibles para realizar inversiones en Francia? 
 Answer 
Under France's Decree 2005-1739, certain investments in "sensitive" sectors from companies whose 
corporate headquarters are outside the EU or th e European Economic Area (EEA) are subject to 
notification and review.  The Decree lists the following sensitive sectors:  gambling; private security; 
research, development and production to stem the use of pathogens or toxins in terrorist activities; 
equipment designed to intercept communications;  testing and certification of information technology 
systems; supply of goods or services relating to th e security of information systems;  dual-use goods 
and technology;  cryptology equipment and servi ces;  businesses certified for national defence; 
production of, or trade in weapons , munitions and explosives for military applications, or equipment 
used in warfare; and businesses under contract to supply research or equipment to the Ministry of 
Defence or its subcontractors (Articles R1253-1 and 2, Monetary and Financial Code). 
 Question 79 
Se menciona que los Estados Miem bros deben abolir los monopolios estatales de servicios postales al 
31 de diciembre de 2010. Aún persisten estos m onopolios o se ha cumplido con lo dispuesto en la 
normativa.  
 
                                                      
42 http://bundesrecht.juris.de/awg/BJNR004810961.html. WT/TPR/M/248/Add.1 
Page 331 
 
 
  Answer 
The Third Postal Directive (Directive 2008/6/EC43), which was adopted on 20 February 2008, obliges 
Member States of the EU not to grant or main tain in force any exclusive or special rights 
("monopoly") for the establishment and provision of  postal services.  Member States had therefore to 
abolish any existing monopoly in the postal sector by the end of 2010 at the latest.  In this regard 
postal markets in sixteen (16) Member States a re fully liberalized as from 1 January 2011. 
 At the same time Article 3 of the Third Postal  Directive envisaged for eleven (11) Member States
44 the 
possibility to implement the said Directive by end of 2012 at the latest.  As all concerned Member  
States notified45 to the Commission that they intend to in voke this right, they are obliged to remove 
any remaining monopoly46 by end of 2012 at the latest. 
 Question 80 
La ayuda estatal que contribuye a alcanzar "objeti vos bien definidos de interés común europeo" es 
considera una ayuda compatible con el merca do común de la UE. ¿Podrían desarrollar cuáles 
programas de ayuda podrían calificar como de "interés común europeo"? 
 
Answer 
According to Art. 107(3) TFEU, State aid which contributes to well-defined objectives of common European interest without unduly distorting comp etition between undertakings and trade between 
Member States, may be considered co mpatible with the common market.  
Objectives of common European interest are, for inst ance, environmental protection, the promotion of 
research and development, regional development or training.  
In order to provide transparency and legal cert ainty, the European Commission defined detailed 
criteria for the assessment of d ifferent types of aid measures.  These criteria set out under which 
conditions aid measures for certain of these objecti ves can be found to be compatible with the 
common market.  
For the most straightforward case s, a block exemption Regulation applies, allowing Member States to 
directly apply the conditions of the Regulation withou t a need for prior notification and approval by 
the European Commission.  For su ch cases, the conditions of the block exemption Regulation can be 
considered as the outcome of a balancing exercise be tween the negative and positive effects of the aid 
measures, which the Commission has carried out in advance.  
For cases not covered by the block exemption, the notification obligatio n applies. In its assessment of 
notifications the European Commission applies the cr iteria laid down in guidelines and frameworks 
for different types of aid.  For the largest case s, which could create significant distortions of 
competition, an in-depth assessment will be carried  out, based on the so-called balancing test in 
                                                      
43 Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending 
Directive 97/67/EC with regard to th e full accomplishment of the internal market of Co mmunity postal services, 
OJ L 52, 27.02.2008, p. 3 [http://ec.europa.eu/internal_market/post/doc/legislation/2008-06_en.pdf]. 
44 Czech Republic, Greece, Cyprus, La tvia, Lithuania, Luxembourg, Hu ngary, Malta, Poland, Romania, 
Slovakia. 
45 Information of Member States that intend to postpone the implementation of Directive 2008/6/EC 
until 31 December 2012, in order to continue to reserv e services to universal service provider(s), OJ C 265, 
18.10.2008, p. 26. 
[http://eur-lex.europa.eu/LexUriS erv /LexUriServ.do?uri=OJ:C:2008:265:0026:0026:en:pdf]. 
46 Any remaining monopoly can comprise items of  correspondence and incoming cross-border 
correspondence up to 50 g and two and a half the public  tariff for an item of correspondence in the first weight 
step of the fastest category. WT/TPR/M/248/Add.1 
Page 332  
 
 which the negative effects on trade and competitio n in the common market will be balanced against 
its positive effects in terms of a contribution to the achievement of well-defined objectives of common 
interest. For more information, please visit:  http ://ec.europa.eu/competition/state_aid/overview 
/index_en.html. 
 
Question 81 
En 2009 se otorgaron ayudas por un valor cercano a los 11.000 millones de euros. ¿Podrían la UE 
indicar los sectores beneficiados por esta ayuda y discriminar el monto por sector beneficiado? 
 
Answer 
It is difficult to understand what aid is referred to in the question since the amount does not seem to 
correspond to any known figure of aid to industry and services.   
 
In any event, State aid information on specific secto rs is generally only collect ed from aid measures 
which have been targeted to individual sectors.  Ho wever, the majority of aid measures are open to 
all sectors for which no sector-specific expenditu re is available since the underlying reporting 
obligations do not provide to collect from Member States such level of detail.  The EU can therefore 
only provide information on the cri sis measures which were target ed to the financial sector (an 
exception to the general rule that aid should be multi-sectorial and which was justified given that it 
was precisely this sector which needed support to avoid a general collapse of the financial system): 
around € 352 billion were granted to the financial sector.  
 Question 82 
El Fondo Europeo de Desarrollo Regional, el Fond o de Cohesión y el Instrumento  de Ayuda de 
Preadhesión otorgaron durante 2008, 37.000 millones de  euros. ¿Podría la UE explicar cómo se 
distribuyó este Fondo entre los Estados Miembros? 
 
Answer 
As regards the distribution of the Cohesion Policy funds (Cohesion Fund, European Regional 
Development Fund – ERDF - and European Social Fund - ESF) among the EU's Member States, 
Articles 18, 19, 20 and 21 as well as Annex II of the Council Regulation (EC) No 1083/200647 provide 
for the rules applicable in the 2007-13 programming period.  The specific allocations by Member 
State are based on several criteria such as for example the eligible population, the regional 
prosperity and national prosperity (using for inst ance GDP or GNI per capita), the unemployment 
and employment rate or the populatio n density.  The table below provides the detail of the distribution 
of those funds by EU Member State. 
 
As far as the Instrument for Pre-accession Assist ance - IPA ("Instrumento de Ayuda de Preadhesión") 
is concerned, all of its money was - and will be - gi ven (contrary to the other two funds mentioned in 
the question) to third countries only and entirely as sole beneficiaries, namely the enlargement 
countries (candidate as well as potential candidate countries for EU accession - Western Balkans and 
Turkey);  no money out of this fund - IPA - is disbursed to EU Member States.  
 
More and detailed information, including the amounts of money involved, can be found at http://ec.europa.eu/enlargement/how-does- it-work/financial-assistance/instrument-pre 
accession_en.htm. 
 
                                                      
47 OJ of the EU L 210/25, 31.7.2006. WT/TPR/M/248/Add.1 
Page 333 
 
 
   Decided Allocations 2007-2013  - millio n € Percentage of all allocations 
AT 1.204 0,3% 
BE 2.064 0,6% 
BG 6.674 1,9% 
CY 612 0,2% 
CZ 26.303 7,6% 
DE 25.489 7,4% 
DK 510 0,1% 
EE 3.403 1,0% 
ES 34.957 10,1% 
FI 1.596 0,5% 
FR 13.449 3,9% 
GR 20.210 5,9% 
HU 24.921 7,2% 
IE 737 0,2% 
IT 27.930 8,1% 
LT 6.775 2,0% 
LU 50 0,0% 
LV 4.498 1,3% 
MT 840 0,2% 
NL 1.660 0,5% 
PL 65.222 18,9% 
PT 21.412 6,2% 
RO 19.213 5,6% 
SE 1.626 0,5% 
SI 4.101 1,2% 
SK 11.381 3,3% 
UK 9.891 2,9% 
CB 7.902 2,3% 
EU27 344.630 100,0% 
 
Question 83 
En función de la cuantía de ayuda estatal otorgada como respuesta a la crisis, consideró la UE aplicar 
otro tipo de medida que no sea una subvención?  Co nsidera la UE que las medidas de estímulo fiscal 
están en consonancia con lo dispuesto en el Ac uerdo sobre Subvenciones y Medidas Compensatorias? 
¿De qué manera esta ayuda no cons tituye un subsidio prohibido? 
 
Answer 
We would be grateful if Argentina could clarify wh ether it is referring to a specific measure taken on 
the part of the EU.  If so, we would invite Argenti na to provide further information so that we are able 
to respond fully.   
Parte 5 
 
En el párrafo 25, el informe hace referencia a la  mejora de la competitividad del sector agrícola y 
forestal mediante el apoyo a la reestructuración, el desarrollo y la innovación,  
Question 84 
¿Cuáles son las medidas o acciones tendientes a lograrlo?  WT/TPR/M/248/Add.1 
Page 334  
 
 Answer 
The EU would like to refer Argentina to the Rural Development Regulation 1698/2005 (Section 1, 
Chapter 1, Title IV) of 20 September 2005 as amen ded by Regulation 74/2009 of 19 January 2009. 
This section contains all details in relation to me asures under Axis 1:  "Improving the competitiveness 
of the agricultural and forestry sector".  EU le gislation can be consulte d (also in Spanish) at: 
http://eur-lex.europa.eu/en/index.htm.  Alternati vely, please refer to notification G/AG/N/EEC/65 of 
4 February 2010.  Question 85 
¿Por qué razón, según el párrafo 28 del Informe, la financiación total para mejora de la competitividad 
y ambiente sólo se aplican a los sect ores agrícola y forestal? ¿En qué consisten, en detalle, los pagos 
agroambientales?  
 
Answer 
All Rural Development measures are addressed to agriculture and forestry sectors.  Agri-
environmental payments play a prominent role in  supporting the sustainable development of rural 
areas and in responding to society's increasing dem and for environmental services.  These payments 
are granted to compensate the costs incurred and income foregone to farmers who, on a voluntary 
basis, make agri-environmental commitments.  Please refer to Article 39 of Section 2 of Chapter 1 of Title IV of the Rural Development Regulation 1698/2005 of 20 Septem ber 2005 as amended by 
Regulation 74/2009 of 19 January 2009.  EU legisl ation can be consulted (also in Spanish) at: 
http://eur-lex.europa.eu/en/index.htm. Alternativel y, please refer to notification G/AG/N/EEC/65 of 
4 February 2010.  (iv) Propiedad Intelectual 
Question 86 
En el párrafo 232 se hace referencia a la ampli ación de la duración de la protección de los artistas 
intérpretes o ejecutantes y los productores de  grabaciones de sonidos de 50 a 95 años.  
 ¿Cuáles serían las bases para tal ampliación, teni endo en cuenta que la protección de autores se 
mantiene en 70 años y teniendo en  cuenta que ha recibido varias críticas al respecto no solo por la 
ampliación de la protección sino además por el dese quilibrio que se genera entre incentivos y acceso? 
 Answer 
Currently, performers and record producers are prot ected for 50 years from the date of the 
performance or from the publication of the s ound recording, whereas authors are protected for life 
plus seventy years.  The proposal for term extension therefore tries to bring the copyright term for 
performers more in line with that applicable to authors.  
 Given that most performers cannot make a living from their profession, those performers who live 
longer and perform at a younger age consequently have an income gap at the end of their lifetimes. 
Furthermore, when the perform ers' copyrights expire, they no long er have a say about the uses made 
of their performances and they are thus exposed to potentially objectionable results which are 
harmful to their name or reputation.  
 The Commission's proposal on term extension creates an additional remuneration claim for session 
musicians who would be entitled to 20 per cent of gr oss sales revenue that accrues from sales in the 
extended term.  Moreover, the 'use it or lose it' claus e would give performers the possibility of getting 
their rights back from the producer with whom they ha ve a contractual relationship, if the latter fails 
to sell the recordings fifty years a fter the initial release.  The European Parliament has voted for an 
extension to 70 years rather than the 95 originally  proposed and it has introduced a provision for a  
"clean slate" which means that record producers can no longer refuse to pay royalties to artists in the WT/TPR/M/248/Add.1 
Page 335 
 
 
  extended period.  The current Council compromise text , which is yet to be adopted by them, fully 
reflects the EP amendments which the Commission finds acceptable.  El párrafo 235 del Informe se refiere al derecho a la autorización de la c opia privada a cambio de 
que los titulares reciban una "compensación equitativa". 
 
Question 87 
¿Cómo se plantea la UE solucionar esta cuestión a futu ro en el ámbito digital dada las dificultades 
prácticas para identificar a los usuarios priva dos, y las contradicciones entre las decisiones del 
tribunal, la legislación nacional y la directiva 2001/29/CE?  Answer 
According to Article 5(2)(b) of Directive 2001/29/EC Member States may provide for an exception for private copying on cond ition that right-holders receive fair comp ensation.  The Directive is neutral 
with respect to the form and means chosen to ensure  fair compensation.  Most Member States provide 
for fair compensation by levying certain goods that are typically used for the production of private 
copies (blank media, recording equipment, mobile listening devices, computers, printers, scanners, 
etc.).  
 
Because of the voluntary nature of this exception, its application is not uniform.  Therefore, as 
announced in the Communication on "A Single Market  for Intellectual Property Rights" (COM (2011) 
287 of 24.05.2011), in order to enable the smooth cross-border trade in the internal market of goods 
which are subject to private copying levies the Commission will appoint a high-level independent 
mediator in 2011 who will be responsible for re solving outstanding issues amongst all interested 
parties with respect to private copying levies and which should lay the ground for comprehensive 
legislative action at EU level.  Question 88 
El párrafo 238 del Informe se refiere a la le y HADOPI.  Esta ley ha recibido muchas crítica 
¿Cómo se visualiza la puesta en pr áctica y sus consecuencias a futuro? 
 
Answer 
The Hadopi law is a national law adopted by the French Parliament.  The draft Hadopi law was 
initially notified, under the so-called "notification"  directive 98/34 EC, to the European Commission. 
The Commission issued observations on the draft but did not consider that its implementation would 
be contrary to the Internal Market principles or th e Union acquis.  In general, it is not for the 
European Commission to comment on the content and the implementation of laws of EU Member 
States to the extent that they are not conflicting with EU rules. 
 At EU level, the European Commission is curren tly examining options for a revision of the IPR 
Enforcement directive (Directive 2004/48/EC).  Subject to the outcome of the Impact Assessment, it is 
however not the European Commission's intention to  introduce new measures against end-users but 
rather to target the sources of IPR infr ingements committed through the Internet. 
 
Question 89 
En los párrafos 251-258 se tratan las indicaciones geogr áficas. En particular, en el párrafo 252 se hace 
referencia a la propuesta de la Comisión para reformar el régimen de IGs.  
 
¿Cuál es la razón por la cual el concepto de IG s netamente ligado a su origen abarca, cada vez más 
conceptos de calidad y de diseño ajenos a su definición? 
 
Answer 
The proposal referred to does not intend to c hange the concept of geographical indications. WT/TPR/M/248/Add.1 
Page 336  
 
 Question 90 
En el parrafo 256, el Informe se refiere al gran número de acuerdos bilateral es firmados por la UE.  
 ¿Cómo considera la UE que en estos casos debe funcionar la cláusula de nación más favorecida? 
 
Answer 
The EU negotiates bilateral agreements  related to IP rights in accordance with Article 4 of the TRIPS 
Agreement.  
 
Question 91 
En materia de observancia, en el párrafo 263 el In forme menciona el hecho de que la UE inicio un 
proceso de consulta para examinar el Reglamento 1383/2003.   ¿Cuáles son los elementos sujetos a examen? ¿El examen que se realizara seguiría incluyendo a las 
patentes? Si es así, ¿cuál es el tipo de entrenamient o que reciben los oficiales aduaneros para detectar 
patentes falsas? 
 
Answer 
The review included the following issues, as laid down in the public consultation paper: 
 1. Scope of the Regulation: situations in which customs authorities should be competent to take 
action. 
2. Scope of the Regulation: r ange of IPRs the Regulation should cover and possible derogations. 
3. Scope of the regulation: possible deroga tions for which customs authorities will not be 
competent to take action in the light of the regulation. 4. Simplified procedure enabling customs author ities to have infringing goods abandoned for 
destruction under customs control, without there be ing any need to determine whether an intellectual 
property right has been infringed. 5. Small consignments and sales via the internet. 6. Costs of storage and destruction.  With regards to patents, the analysis concerning its  inclusion within the scope of the Regulation 
1383/2003 was dealt under point one of the previous list. 
As part of a new IPR strategy for the Singl e Market, the Commission on 24 May 2011 adopted a 
proposal for a Regulation of the European Parl iament and of the Council concerning customs 
enforcement of intellectual property rights
48.  The text of the proposal, which is now before the 
Council and the European Parliament, maintains patents  as one of the intellectual property rights to 
be enforced by customs authorities.  
Customs officers receive general training on intellectual property rights and on the legislation governing the conditions and procedures for the en forcement by customs of such rights, which 
includes training on patents.  SINGAPORE I 
 I. DECISION-MAKING ON TRADE AND INVESTMENT MATTERS 
Question 1 
We understand that unanimity by the European Counc il is needed for agreements on trade in cultural 
and audio-visual services; other matters in services trade;  TRIPS;  and certain aspects of FDI, while 
                                                      
48http://ec.europa.eu/taxation_customs/customs/customs_controls/counterfeit_piracy/legislation/index_
en.htm. WT/TPR/M/248/Add.1 
Page 337 
 
 
  agreement on most other issues is by simple or qua lified majority.  Is there any intention for the 
European Union (EU) to streamline and harmonize al l decision making processes with regard to trade 
and investment?  
 
Answer 
Unanimity is not required for all matters mentioned in  the question.  Unanimity with regard to TRIPS, 
FDI and services is required only in the exceptional cases where it is required for the adoption of 
internal rules (cf. Article 207(4), second sub-paragr aph of the TFEU).  In the case of cultural and 
audio-visual services, unanimity is required only wh ere the agreement "'risks p rejudicing the Union's 
cultural and linguistic diversity" (cf. Article 207( 4), third subparagraph, letter (a) of the TFEU).  
There is currently no intention to harmonize all d ecision making processes with regard to trade and 
investment. 
 
II. CUSTOMS PROCEDURES AND PRACTICES 
Question 2 
The EU has introduced advance cargo information requi rements for imports as part of the "safety and 
security amendment" to the Customs Code, where ca rriers, with the exception of certain countries, 
must now lodge an electronic Entry Summary Declaration (ENS) with the "customs office of first entry" into the EU. We understand that the Commi ssion has assessed these requirements to be in line 
with the World Customs Organization's (WCO) SAFE  Framework of Standards adopted by the WCO 
Council in June 2005.  We would like to know, however, whether there is any intention for these 
requirements to be simplified for all carriers, not onl y those to whom exceptions  have been accorded.  
 
Answer 
There is no intention to extend exceptions from the ENS requirements to carriers or other sectors (e.g. 
importers, exporters, freight forwarders).  Indeed due  to the current security concerns, mainly in the 
aviation mode, exceptions from ENS requirements a re under review and it is likely that many will be 
removed, compelling those parties to submits Entry Summary Declarations (ENS).  
 
Question 3 
The EU has in place an authorized economic operator status initiative.  This is a useful programme 
with benefits for participants. However, the progra mme is only open to persons in the EU.  What is 
the rationale for this?  And is there any intention to review the participation? 
 
Answer 
The EU AEO program is introduced in the Commun ity Customs Code and thus part of the Union 
acquis.  All the MS apply/implement it as the legislation is directly applicable for them.  One of the 
basic conditions for applying for the EU AEO status  is that the applicant has to be an economic 
operator established in the EU.  This however incl udes also third country companies who due to their  
business organization have subsidiaries in EU MS.  The most important being that it is the subsidiary 
(separate legal entity) registered in EU and having customs activities in EU that can apply for the 
status.  It has to be also taken into account that  some of the criteria and in particular the one related 
to 'safety and security standards' customs authorities always carry out checks in the premises of the  
company. 
 III. TARIFFS 
Question 4 
The "Meursing Table" to determine tariffs for proc essed agricultural products appears complicated, 
with thousands of possible combinations of tariffs r esulting.  What is the EU's  rationale for such an 
approach to determining tariffs and are there any plans to review this? 
 WT/TPR/M/248/Add.1 
Page 338  
 
 Answer 
The tariff lines mentioned are bound in the EU sc hedule resulting from the Uruguay Round.  The 
explanation is provided in its Annex 1. 
 
Question 5  
On non-agricultural products, nuisance tariffs are pr esent.  Does the EU have  any plans to review 
these?   
Answer 
At this moment, the EU has no plans to review or abolish nuisance duties.  However, the EU is 
prepared to negotiate the level of all of its tariffs in multilateral and in  some cases bilateral 
negotiations.  None of the EU's tariffs are applied to imports of  Least-Developed Countries (LDCs). 
 
IV. TECHNICAL REGULATIONS AND CONFORMITY ASSESSMENT 
Question 6 
What is the relationship between the EU and the indi vidual member states with regard to notifications 
on technical regulations and conformity assessment procedures?  Both the EU and member states 
have made numerous notifications in the past 3 y ears on a broad range of prod ucts.  Are there certain 
notifications that come under the purview of the EU and others that remain under the charge of 
individual member states?  How are overlaps addressed? 
 
Answer 
The EU Member States are sovereign States having the co mpetence to legislate in the area of goods, 
unless harmonized legislation has been adopted at EU level.  Member States can therefore adopt technical regulations and conformity assessment pr ocedures only when the relevant aspects are not 
fully harmonized at EU level.  Therefore, no overl aps with fully harmonized EU legislation should 
exist.  The EU possesses an internal  notification system that contri butes to ensuring that Member 
States' technical regulations and c onformity assessment procedures a re in compliance with the Treaty 
on the Functioning of the European Union and EU harmonized legislation.  
 
V. STATE TRADING AND STATE-OWNED ENTERPRISES 
Question 7 
We note from the WTO Secretariat's report (WT/TPR/S/248, page 68) that long-standing de jure  
monopolies are in effect in several member states.   These include monopolies in rail transportation, 
energy, and utilities.  We would like to ask whethe r the EU has plans to abolish these monopolies in 
the near future, and details of such plans, if any.  
 
Answer 
For all industries and markets the Commission oblig es Member States to subject all companies with  
special or exclusive rights, including monopolies, to  the rules of competition (Art 106 TFEU).  Market 
specific Directives ensure that competitive market conditions preva il across the European Union by 
requiring Member States to ensure that any company is entitled to provide services and to operate the 
required networks, safe exceptions.  Whilst the treaty does not prejudge the system of property in the 
Member States, to the extent that it can force these Member States to abolish the existing monopolies 
the Commission is gradually introducing competition in  the network industries, even within national 
borders.  For instance, the EU has opened up f reight transport to competition from January 2007 and 
international passenger transport from January 2010 and is working on opening passenger transport 
in all Member States.  Progress has also been m ade in opening the markets in gas, electricity, oil, 
coal, water and environment sectors to the benefit of consumers.  This also involves State aid 
assessment, for instance by ensuring that any compensation granted to  postal operators for 
discharging public service obligations does not exceed  what is necessary to cover the costs incurred WT/TPR/M/248/Add.1 
Page 339 
 
 
  in doing so and that commercial activities outside such services of general economic interest are not 
cross-subsidised. 
 
VI. TRADE IN SERVICES 
Question 8  
We note from the WTO Secretariat's report (WT/TPR/S/248, page 116), that the Services Directive 
extends to all services except for the following: fi nancial services;  electronic communication services 
and networks;  transport services, services of temporary work agencies;  healthcare and pharmaceutical services;  audio-visual and broadcasti ng services;  gambling activities;  certain social 
services;  private security services; and services by no taries and bailiffs appointed by an official act of 
government.  We further note that with the excep tion of key services sectors such as financial 
services, telecommunications, and transport, which are liberalised under other rules, the Commission has no concrete plans to cover the excluded service s.  We would appreciate clarification from the EU 
regarding the reason for the exclusions. 
 
Answer 
The Services Directive applies to services, defined as self-employed economic activities normally 
provided for remuneration.  The Services Directive appli es to all activities and sectors that are not 
expressly excluded from its scope of application. On the contrary, the Services Directive does not appl y to the areas you mentioned in your question.  
The reasons behind these exclusions are diverse.  For the most part, certain sectors have been 
excluded from the scope of the Service Directive b ecause they were/are already covered by specific 
pieces of EU legislation regulating these service ac tivities.  This is notably the case for:  financial 
services;  electronic communications services and networks;  services in the field of transport; services of temporary work agencies;  healthcare  services;  audio-visual services and radio 
broadcasting;  
Other sectors have been excluded in the course of th e negotiations by the C ouncil and EU Parliament 
due to their specificities and political sensitivity.  But these exclusions do not of course make these 
sectors and services immune to the application of Artic les 49 (the freedom of establishment) and 56 
(the freedom to provide services) of the FEU Trea ty.  Thus, as long as they are services for the 
purposes of Article 57 FEU Treaty, they may be su bject to the rules on freedom of establishment and 
freedom to provide services under Articles 49 and 56 FEU Treaty, as the case may be.  
 
SINGAPORE II 
 
Sanitary and phytosanitary standards (SPS) 
 We note from the WTO Secretariat's report ( WT/TPR/S/248, page 57, para 108 ) that imported food 
must comply with the relevant requirements stipul ated under the EU food law and animal health law, 
or conditions recognized by the EU to be at least equivalent to these requirements.  Singapore would 
like to understand if the EU would also recognize conditions equivalent to its requirements for 
imports of animals and animal produc ts, and plant and plant products.  What would be required for the 
exporting country to objectively demonstrate that its  proposed measure(s) are equivalent to the EU's 
relevant import requirements, and achieve the EU's  appropriate level of protection?  Are there any 
other conditions to be met before establishing an  equivalence arrangement?  How long does the EU 
typically take to establish equivalence for a single SPS measure?  
Answer  
It is not possible to give an estimation of the tim e needed to establish an  equivalence agreement. 
There are several aspects to be studied. Particular a ccount shall be taken of the legislation of the 
third country, the organization of the competent authority and its inspection services, the actual 
health conditions during productio n, storage and dispatch of th e concerned commodity;  and the WT/TPR/M/248/Add.1 
Page 340  
 
 assurances which a third country can give on the comp liance with its own standards on health control 
and monitoring of production condition s.  As a first conditional step, documentary evaluations of the 
inspection system of the exporting Member are perfor med and the structure and performance level of 
the Competent Authority assessed (in line with Codex Alimentarius CAC/GL 26-1997
49).  To allow the 
import conditions to be fixed, an EU inspection on the spot is carried out further on.  These are tailor-
made import conditions adapt ed to the particular situation in the third country, based on equivalence 
of the inspection and certification system.  The expor ting country shall also establish a procedure for 
issuing a health certificate accompany ing the consignments forwarded to the European Union.  This 
latter measure provides for the ultimate assurance that the inspection of the products has been 
performed in an equivalent way to the EU standards .  This procedure also applies to listing of 
facilities approved by the competent authority to expor t to the European Union.  The latter is subject 
to compliance to requirements in the third country t hat are equivalent to the ones laid down in EU 
legislation as well as to the monitoring by th e official inspection service of the third country. 
 
During this process and clearly in line with Codex guidelines (section 7 of CAC/GL 34-199950), 
information is exchanged on the legal framework, pr ograms and implementation of control, decision 
criteria and measures, infrastructure, equipment,  transport and communication, including basic 
hygiene and water quality;  on laboratories and th eir assessment or possible accreditation and proof 
of proficiency testing;  on de tails on the guarantees to establish a competent inspection service (e.g. 
staff training, number of staff, etc.);  on details on the procedures of audit;  and finally on the structure and operation of any rapid alert system in the exporting country.  The verification of the 
HACCP application is also in line with Codex Al imentarius guidelines on HACCP (Food Hygiene, 
Basic texts CAC/RCP 1-1969, Rev.3 (1997), amended 1999; and its Annex). 
 
Once the exporting country has been assessed also  on site by the European Union and in case 
sufficient guarantees have been prov ided to establish an equivalent 
 
HONG KONG, CHINA I 
 Tariffs 
(WT/TPR/S/248:  pages. 34-36, paras. 28-36 and Table III.2)  
1. We note from the Secretariat Report that 8.8% of the tariff lines (i.e. over 800 tariff lines) 
carry "nuisance" applied tariff rates which are less than or equal to 2%.  Does the EU have any plan to 
abolish such nuisance tariff rates for the purpose of facilitating the trade? 
 
Answer  
At this moment, the EU has no plans to review or abolish nuisance duties.  However, the EU is 
prepared to negotiate the level of all of its tariffs in multilateral and in  some cases bilateral 
negotiations.  None of the EU's tariffs are applied to imports of Least Developed Countries (LDCs).  
 
2. The EU's non-ad valorem tariff rates are on av erage significantly higher than the ad valorem 
tariff rates (24.7% compared with 4.6%), and he nce provide higher protection for some particular 
products.  We would like to know if the EU has an y plan to address this imbalance in its tariff 
structure.  
                                                      
49  Guidelines for the Design, Op eration, Assessment and Accreditation of Food Import and Export 
Inspection and Certification Systems. 
50 Guidelines for the Development of Equivalence Agreements Regarding Food Import and Export 
Inspection and Certification Systems. WT/TPR/M/248/Add.1 
Page 341 
 
 
  Answer  
The EU does not feel it has to justify the level of  its tariffs, which are all in line with WTO-rules.  
 
Other Charges 
(WT/TPR/S/248:  pages. 38-39, paras. 44-46) 
 
3. We note that Value Added Tax (VAT) rates differ across EU Member States and Member States may derogate from the VAT rules subject to Council authorization.  Similarly, excise duty rates applied on same products may vary across Member States.  Would the EU consider harmonizing and 
simplifying the VAT and excise duty systems for the purpose of trade facilitation?  Answer  
Excise 
EU legislation in the field of excise duties is ba sed on approximation of national tax rates on the 
products most commonly subject to excise duti es (alcohol, tobacco and energy products), meaning 
that EU legislation prescribes minimum tax rates wh ile Member States remain free to tax above those 
rates.  In fact, the Commission had originally pr oposed to establish single harmonized tax rate on 
excise products in the internal market, but this approach was rejected by Member States wanting to 
retain flexibility to increase nationa l levels of taxation according to their budgetary needs and policy 
considerations.  If set at an appropriate level minimum tax rates on excise products can effectively serve the proper 
functioning of the internal market as they safeguar d Member States' possibility to raise revenue by 
limiting tax competition and avoid excessive compe titive distortions between economic actors. 
Upward divergence from the common minimum rates will  in fact automatically be limited as Member 
States will not want to put domestic operators/ consumers at an excessive disadvantage, which might 
in turn trigger avoidance strategies.  As far as  excise duties are concern ed, the Commission does not 
intend for the moment to revert to the idea of full rate harmonization, which would in any case require 
unanimous approval by Member States in the Council. 
 
VAT 
Under the current EU VAT rules, Me mber States are obliged to apply a standard rate of at least 15% 
and may also apply one or two reduced rates, set no lower than 5%.  The reduced rates shall apply 
only to an exhaustive list.  This basic structure, wh ich applies to all Member States, is complicated by 
the plethora of different temporary derogations granted to particular Member States.  This situation is 
the result of various compromises in the Council of the EU (mainly the Economic and Financial 
Affairs Council which is made up by the minist ers of finances of all the Member States), which are 
unavoidable as EU tax law has to be adopted by unanimity.  
Nonetheless, it should be noted that, generally, th e current differences in the VAT rates do not seem to 
cause significant disruptions in the internal market.  This is mainly because of the existing rules and 
correction mechanisms governing the place where the VAT is due.  In cases of cross border 
transactions in the EU, taxation is charged at the rate applied in the Member State of destination of 
the goods or the establishment of the customer.  After some unsuccessful attempts to reach a mo re harmonized VAT, a Green paper on the future of 
VAT was presented by the Commission on 1st of  December 2010 to launch a broad consultation 
process with all the stakeholders on the evaluatio n of the current VAT system and possible means for 
its improvement and, in particular, the rationalisation and the simplifica tion of the current rules.  The 
consultation process ran until 31 May 2011 and th e Commission is currently in the process of 
analysing the replies.  Based on the feedback receive d, the Commission will pre sent the priorities for 
the future VAT system in a Communication at the end of 2011.   WT/TPR/M/248/Add.1 
Page 342  
 
 Contingency Measures 
(WT/TPR/S/248:  page 39, para. 50) 
 4. As noted in the Secretariat Report, the EU  Trade Commissioner indicated his intention to 
revisit the question of whether the EU's continge ncy instruments can be further refined once the 
economic crisis subsides.  We would appreciate it if the EU could share with us more information in 
this respect, such as the possible time-frame and the approach of the review. 
 
Answer  
The Commission's intention is to revisit the question of whether our trade defence instruments can be 
further refined to ensure t hat the EU remains effective in response to unfair trading practises. In this 
context the Trade Commissioner stated at the 2009 hearing at the European Parliament that the 
Commission is open to a debate on this issue, but that certain conditions s hould be fulfilled before 
launching such a process.  One important element would be to await the results of the WTO Doha 
Development Agenda negotiations on TDI.  In the meantime around mid-2009 after an intensive, wide 
ranging consultation phase, the Commission agreed w ith Member States ways in  which transparency 
in trade defence investigations could be improved .  The measures included a revamp of TDI website; 
specific assistance for SMEs; improved disclosure etc. and are already underway. The EU has also 
launched an evaluation study.  The objectives of the evaluation are: 
- To provide a concise description of the Eu ropean Union's trade defence instruments 
(TDI) and of the current practice in this a rea, especially as regards Regulation (EC) 
No 1225/2009 (basic anti-dumping Regulatio n) and Regulation (EC) No 597/2009 (basic 
anti-subsidy Regulation), which would serve as a background for the analysis to be performed as described in the points below; 
- To provide a balanced economic analysis of th e fundamental arguments in favour of and 
against the use of trade defence instruments and their application in the context of the 
current international legal framework (e.g., in view of the absence of international 
competition laws) and economic realities;  
- To provide an evaluation of the performance,  methods, utilisation and effectiveness of the 
present TDI scheme in achieving its trade policy objectives; 
- To provide an evaluation of the effectiveness of the existing and potential policy decisions 
of the European Union (e.g., the Union interest test, the lesser duty rule, the duty 
collection system) in comparison with the policy decisions made by the following EU 
trading partners:  Australia, Canada, China, India, New Zealand, United States;  
- To provide an examination of the basic an ti-dumping and anti-subsidy Regulations in 
light of the administrative practice of the EU institutions, the judgments of the Court of 
Justice of the European Union and the recomm endations of the WTO Dispute Settlement 
Body. 
The results will normally be pub lished by the end of 2011. 
 Services 
(WT/TPR/S/248:  page 116, para. 51)  
5. It is mentioned in the Secretariat Report th at the EU Directive on Services in the Internal 
Market applies only to EU (EEA) citizens and "leg al entities established in the EU (EEA)", and does 
not oblige Member States to consider changes appli cable to non-EU services supp liers.  In this regard, 
we would like to know whether the Directive applies to le gal entities that are established in the EU 
(EEA) but are owned or controlled by non-EU natural or juridical persons. 
 
Answer  
The Services Directive applies to legal entities that are established in the EU (and the EEA) without 
regard to the fact that these legal entities are owne d or controlled by non-EU  natural or juridical 
persons. WT/TPR/M/248/Add.1 
Page 343 
 
 
  The Services Directive applies to service s which are provided by a natur al person who is a national of 
a Member State or by a legal person within  the meaning of Article 54 of the FEU Treaty51 and 
established in a Member State.  As clarified in R ecital 38 of the directive, the concept of "legal 
person" encompasses all entities constituted under, or governed by, the law of a Member State, 
irrespective of whether under national law they are considered to have legal personality.  All these 
entities have to be covered by the implementation of the Directive.  By contrast, services provided by 
natural persons who are not nationals of a Member State or by entities which are established outside the EU or are not incorporated in accordance with the laws of a Member State are not covered by the 
Directive. 
 
Insurance Services 
(WT/TPR/S/248:  page 122, para. 67)  6. It is noted that the new regulations on credit rating agencies (CRAs) require mandatory 
registration for all CRAs operating in the EU.  Addi tionally, a certification system was introduced for 
smaller CRAs from third countries with no presence or affiliation in the EU.  The Commission would 
determine the equivalence of the legal and supe rvisory framework of a third country to the 
requirement of the Directive and grant such sm aller CRAs with exemption from some of the 
organizational requirements for CRAs active in the EU on a case-by-case basis.  We would like to know, apart from physical presence, what other organizational requirements may be exempted for the smaller CRAs from third countries?  What are the criteria for granting an exemption and whether such 
criteria are made known to the public?  How many cases of exemptions have been granted since the 
implementation of this policy? 
 
Answer  
While the Commission is empowered to adopt equivale nce decisions according to Article 5 (6) of 
Regulation No 513/2011 of 11 May 2011 amending  Regulation No 1060/2009 (CRA Regulation), the 
European Securities and Markets Authority (ESMA) is in charge of deciding on the applications of 
third country CRAs for certification including on any ex emptions in accordance with Article 5 (4).  
The certification shall be based on the criteria set out in  Article 5 (1) (a) - (d) of the CRA Regulation.  
Exemptions may be granted from the requirement of  physical presence in the Un ion and, on a case by 
case basis, from the requirements listed in Secti on A of Annex I (organizational requirements) and in 
Article 7 (5).  In its decision, ESMA shall take into  consideration the size of the CRA, the nature, scale 
and complexity of its business, the nature and range of its issuing of credit ratings as well as the 
impact of the credit ratings on the financial stability and integrity of the EU financial markets.  
 Financial Services 
(WT/TPR/S/248:  page 123, para. 68)  7. On the Directive on Alterna tive Investment Fund Managers (AIFMs) adopted in 2010, which 
shall be transposed into national legislation by summer 2013, we would like the EU to brief us on the 
latest development, including details of the envi saged progressive extension of passporting rights to 
non-EU AIFMs marketing EU - and non -EU Alternative Investment F unds (AIFs) and to EU AIFMs 
marketing non-EU AIFs.  In addition, we are al so interested in knowing whether there will be 
implementing guidelines to be mapped out by the authorities on how the Directive works. 
                                                      
51 Article 54 (ex. Article 48 TEC) Companies or firms formed in accordance with the law of a Member 
State and having their regist ered office, central administ ration or principal place of business within the Union 
shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of 
Member States.  "Companies or firms" means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which 
are non-profit-making. WT/TPR/M/248/Add.1 
Page 344  
 
 Answer  
AIFM Directive was published in the Official Jour nal on 1 July 2011 and will enter into force shortly. 
The Directive sets all substantive rules and conditions regarding passporting rights for non-EU AIFMs and AIFs including the dates when such right s become applicable.  One of the conditions is 
the existence of cooperation arrangements between sup ervisors in the EU and the third countries.  To 
that end, the European Commission is required to  adopt implementing measures specifying a common 
framework to facilitate establishment of such arr angements and ESMA is required to develop draft 
technical standards to specify the minimum content of the cooperation arrangements.  The European 
Commission requested ESMA to provide a technica l advice regarding those implementing measures. 
ESMA is expected to deliver their advice on 16 No vember 2011.  The development of draft technical 
standards rests on the initiative of ESMA.  
Road Transport for Goods 
(WT/TPR/S/248:  page 127, para. 81) 
 
8. We note and welcome the efforts of the EU to minimize the administrative burden on the road 
haulage industry and to harmonize rules applicable to  cabotage.  We note in particular that cabotage 
operations may be carried out by non-resident tran sport operators on a "temporary" basis.  According 
to Regulation (EC) No. 1072/2009, "temporary" means "the provision of a maximum of three cabotage operations within a period of seven days following the unloading at the end of the international journey".  We would like to know  the rationale behind the present definition of 
"temporary".  Since the Regulation has entered into force for a year, has there been any review on its 
implementation, especially are there any difficu lties encountered by the non-resident transport 
operators in meeting the requirement? 
 
Answer  
The provisions of Regulation (EC) No. 1072/2009 regarding cabotage have as a main objective to 
facilitate international road transport and to in crease the efficiency of the operations by reducing 
empty journeys back to the place of origin.  The le gislator decided to introduce these simple and clear 
provisions in order to create a harmonized framework within the EU and therefore to assist road 
transport operators.  The final number of trips and the timeframe has been the result of the 
discussions during the legislative process.  During the first year of the implementation operators have 
not communicated any serious problems regarding th e implementation of the rules and there has been 
no review of the implementation of the Regulation.  Maritime Transport 
(WT/TPR/S/248:  page 128, para. 87) 
 
9. We note that the Directive 2010/65/EU on reporting formalities for ships arriving in and/or departing from ports of EU Member States was adopt ed in October 2010.  It helps promoting short-
sea shipping in the EU by identifying and elimin ating obstacles in order to facilitate maritime 
transport and reduce administrative burdens for sh ipping companies.  We would like to know if 
foreign shipping companies or foreign ships could al so enjoy the simplified formalities and the "single 
window" electronic transmission. 
 
Answer  
The purpose of the Directive 2010/65/EU on reporting formalities for ships arriving in and/or departing from ports of EU Member States is to reduce administrative burdens for shipping 
companies and facilitate maritime tr ansport and the directive applies to all ships, regardless of flag.  
 WT/TPR/M/248/Add.1 
Page 345 
 
 
  HONG KONG, CHINA II 
 
Question 1.2 
We understand that by 2013, coope ration agreements have to be in place between the competent 
authority of the relevant EU country and the hom e jurisdiction of the non-EU AIFM, in order for non-
EU AIFMs to continue make use of the national private placement regimes52 to access individual EU 
countries.  We would like to know –  
(a) Would the existing IOSCO MMoU 53 suffice? 
(b) If not, when would the EU develop technical standards on the content of the new cooperation agreements and be ready to ki ck-start discussions on such agreements? 
 
Answer  
It is correct that such cooperation arrangements will  have to be in place if a non-EU AIFM wants to 
market AIF in the EU after the end of the trans position deadline for the Directive in July 2013.  
The European Commission has requested advice fr om the European Securities and Markets Authority 
(ESMA) on the above question.  This advice is due in November 2011.  To our knowledge, ESMA is 
working on the basis of the IOSCO MMoU and the "G eneral Principles Relating to Cooperation" set 
out in the 2010 report of the technical committ ee but is currently discussing if and if yes, how the 
MMoU would have to be amended to fulfil the requirements of the AIFM Directive.  On the basis of this advice the European Commissi on will propose legally bind ing delegated acts on 
the design of a common framework to facilitate the establishment of those cooperation arrangements 
in spring 2012.  
In addition, ESMA is to draft regulatory technica l standards (RTS) to determine the minimum content 
of these arrangements.  For these RTS no deadline exists.   It is in the sole responsibility of ESMA to 
decide when to present them to the European Commission.  However, the European Commission has 
invited ESMA to come forward with its draft as soon as possible in order to provide Member States 
with sufficient time to complete these coop eration arrangements with third countries. 
 NEW ZEALAND 
 Geographical indications 
 
Question 1 
The Secretariat identifies the three me chanisms for GI protection in the EU.  It also notes that a "large 
number of third-country GIs are protected through bila teral agreements that the EU has signed with its 
trading partners".  (WT/TPR/S/248 page 96, para 256)  
How does the Commission determine whether an agri cultural product or foodstuff contains a name 
which is considered generic, and who has the mandate  to make a final decision on "genericness" in the 
EU?  
Answer   
Pursuant to Art. 3 of Regulation (EC) No 510/2006,  a "name that has become generic" means the 
name of an agricultural product or a foodstuff which, although it relates to the place or the region 
where this product or foodstuff was originally pr oduced or marketed, has become the common name 
                                                      
52 National private placement regimes are the national rules for the marketing of non-EU funds in the 
EU. 
53 IOSCO MMoU refers to the International Organization of Securities Commissions Multilateral 
Memorandum of Understanding.  It represents a common understanding amongst its signatories about how they will consult, cooperate, and exchange information for securities regulatory enfor cement purposes.  List of 
signatories of IOSCO MMoU can be found at http://w ww.iosco.org/library/index.cfm?section=mou_siglist. WT/TPR/M/248/Add.1 
Page 346  
 
 of an agricultural product or a foodstuff in the Co mmunity.  To establish whether or not a name has 
become generic, account shall be taken of various factors, in particular: 
a) the existing situation in the Member States and in areas of consumption; b) the relevant national or Community laws. 
 
Question 2 
We note that there appear to be different processes in relation to terms protected under EU regulations 
and terms protected via bilateral agreements.  For terms protected pursuant to EU regulations, third 
parties have a procedural right to lodge an objection based on the grounds contained in the 
regulations.  In contrast, for terms protected via b ilateral agreements third parties do not have those 
same procedural rights.  
a) Could the EU please comment on why there is a difference of a pproach between terms 
protected via the regulations and terms protected vi a bilateral agreements, when the effect in the 
market – in terms of restricting third parties' use of certain terms – is the same b)  How does the EU plan to address disputes over bilateral agreements  when these sit outside normal dispute procedures 
for third parties available through Regulation (EC) 510/2006?  
b) How does the EU plan to address disputes ove r bilateral agreements when these sit outside 
normal dispute procedures for third parties av ailable through Regulation (EC) 510/2006? 
 
Answer   
a) During the negotiation process of a bilateral agreement on GIs or any further update of an 
existing agreement, the negotiating parties carry out  an objection procedure as regards names 
entitled to be protected.  The outcome of these objections procedures determines the list of GIs 
annexed to the agreement. Therefore, there is no difference of approach betw een the procedures applied in case of bilateral 
agreements and those established at EU level as regards objection procedure. 
b) Disputes over bilateral agreements would be  addressed within the usual framework of 
existing rules of international law. 
 
Product Quality Schemes 
 
Question 3 
The Secretariat (WT/TPR/S/248 page 95, para 252) ma kes reference to the Commission proposal for a 
Regulation on agricultural product quality schemes.  Among others, it suggested that the GI regime be 
reformed by refining the eligibility criteria, shor tening the application process, and inviting producer 
groups to take on a bigger administrative role.  
a) How is this regulation bei ng developed so as not to create unnecessary obstacles to trade?  
Answer   
The Commission's proposal is designed to streaml ine and simplify the GI scheme.  The latter is 
maintained in all its essential components.  The pr oposed regulation is d eveloped in accordance with  
the relevant provisions of the WTO Agreements to  ensure that it will not create unnecessary obstacles 
to trade.   
Common Agricultural Policy   
Question 4 
New Zealand welcomes the on-going reforms of the Common Agricultural Policy (CAP) and the 
statement that most income support to farmers is now decoupled from production and farmers are 
therefore free to follow market incentives (WT/TPR /G/248 p.18, para 82).  New Zealand recognizes 
and commends the on-going efforts of the EU to reform the CAP and encourages the EU in the 
direction of greater market orientation and re duction of distortions to international trade. WT/TPR/M/248/Add.1 
Page 347 
 
 
  a) How does the EU see farmers following market  incentives when the fact of being able to 
count on income support reduces the need to ma nage business risks such as price and income 
volatility? b) How does the EU see the reform of the CAP developing so as to improve competitiveness in 
the face of growing worldwide demand for food an d how will it respond to agricultural markets where 
demand is strengthening, i.e. Asia?  
c) Without reform of external policies (border pr otection), how can the EU ensure an integrated 
reform of the CAP whereby EU producers are encour aged to be more compe titive in global markets? 
 
Answer   
a) The OECD54 carried out several work streams on  risk management. In a cross-country 
analysis encompassing New Zealand, Australia and 4 EU member States55 the OECD studied the so-
called crowding effect of various policy measures.  The study concluded that the "crowding effect of 
highly decoupled payments, such as the Single Farm Payment in the European Union, have very 
limited crowding-out effects on other risk management strategies and a very limited effect in reducing 
income variability".  As a matter of fact, followi ng the significant cut in EU support prices and the 
recent increase in volatility, the use of EU based  futures ma rkets has significantly increased 
(especially for cereals, and new contracts have b een introduced for dairy products).  In its 
Communication on the CAP 202056 the Commission proposed to include a risk management toolkit to 
deal more effectively with income uncertainties and market volatility.  The toolkit would be made 
available to Member States to address both producti on and income risks, ranging from a new WTO 
green box compatible income stabilization tool, to  strengthened support to insurance instruments and 
mutual funds. 
 
b-c) As reflected in its title "Meeting the food , natural resources and territorial challenges of the 
future", the above-mentioned Communication on C AP 2020 identifies the key challenges to be met, 
the objectives pursued under the reformed CAP an d indicates corresponding reform options.  Food 
security – including contribution to growing world demand as well as  increasing globalisation -  
including the prospects of new multilateral and bilateral trade agreements - are part of the 
challenges.  The overall market orie ntation of the CAP is to be kep t, while also maintaining the 
general architecture of the market management tools, with some streamlining.  Improving 
competitiveness in a more market or ientated environment remains one of the key objectives of CAP 
reform.  Measures to enhance competitiveness are already included under the rural development 
policy, and will be pursued under CAP reform by promoting innovation and restructuring and by 
enabling the farm sector to beco me more resource efficient. 
The ensuing legislative proposals for CAP reform will  be tabled in autumn 2011, accompanied by an 
impact assessment. 
 
Tariffs and subsidies 
 
Question 5  
New Zealand agrees with the EU's position stat ed in its November 2010 communication "Trade, 
Growth and World Affairs" that proposes a strategy to "reduce trade barriers, to open global 
markets" (WT/TPR/G/248, p.14, para 58) 
 
                                                      
54 http://www.oecd.org/document/2/0,3746,en_2649_37401_42749954_1_1_1_37401,00.html. 
55 Kimura, S., J. Antón and C. LeThi (2010), "Farm Level Analysis of Risk and Risk Management 
Strategies and Policies:  Cross Country Analysis", OE CD Food, Agriculture and Fisheries Working Papers, No. 
26, OECD Publishing. http://dx.doi.org/10.1787/5kmd6b5rl5kd-en. 
56 COM(2010) 672 final. WT/TPR/M/248/Add.1 
Page 348  
 
 a) Given that "export subsidies are among the most trade distorting of interventions and that they 
and changes in duties in response to world market prices can exacerbate swings in world prices and 
change the terms of trade to the detriments of ot her exporters", in what ways does the EU intend to 
further reform its tariff regime in order to take acc ount of the benefits of liberalisation of trade in 
agricultural products to the global economy, of which the EU is an integral part? 
 Answer  
The EU thanks New Zealand for agreeing with th e EU position and would note that it remains 
committed to the conclusion of the DDA negotiations which should lead to the parallel elimination of 
all forms of export subsidies and disciplines on all expor t measures with equivale nt effect, as part of a 
comprehensive, ambitious and balanced package und er the Single Undertaking, including domestic 
support and market access provisi ons as established in the December 2008 draft modalities, but also 
TRIPS issues, namely GI register and GI extension. 
 
Question 6 
New Zealand acknowledges EU's resp onse to tackle financial turmoil and its role in shaping the 
global response to the financial crisis.  However, in  January 2009, in response to low world prices, the 
EU reintroduced export subsidies for dairy prod ucts, but then removed them in October 2009 
(WT/TPR/S/248 p. 111, para 39).  In response to fluc tuating world prices, the EU has also, within the 
limits of its bound tariffs, changed its MFN applie d tariffs (WT/TPR/S/248, page 109, para. 32).   
 
a) We recognize that the EU has acknowledged the need for the credible withdrawal of 
temporary measures approved under the Temporary Fram ework to avoid longer lasting distortions of 
markets. How does the EU intend to make this happe n and is there a preliminary timetable for this 
withdrawal?     Answer : 
The measures adopted under the Temporary Framewo rk in the context of the crisis were limited in 
time and the priority now is to ensure the exit. In authorizing aid, the Co mmission was particularly 
adamant that the measures had to be limited in time and/or contain measures to incentivize an exit 
from public support as soon as possible.  Th e rolling back process has started: on 1 December 2010 
a decision was taken to gradually phase out the temporary support while prolonging some of the 
measures applicable to the financial and the real economy sector until 31 December 2011 but subject 
to stricter conditions.  However, it is up to the Member States to make use or not of this exceptional 
possibility.  
 
Aid for Trade 
 
Question 7 
The Commission noted (WT/TPR/G/248 page 25, para 121) that it is addressing its findings from the 
implementation of its Aid for Trade Strategy.  
a) How is it doing this?  In particular, New Zeala nd would be interested to know what efforts the 
Commission may be undertaking to facilitate greater  harmonization with other donors (e.g. flexibility 
in its own arrangements to enable joint funding in support of a common work plan). 
 
Answer 
The Commission has several mechanisms for harm onizing with other donors and to jointly fund 
programmes to support a common work plan, including  in the field of aid for trade.  These are: 
 As a participant, the Commission harmonizes w ith other donors primarily through sector 
budget support.  Usually Multilaterals such as  the World Bank (e.g. Health sector in 
Bangladesh) or the Asian Development Bank (e .g. the Education sector in Bangladesh) or 
the UN coordinates donors on pl anning, financing, implementa tion, monitoring, reviewing WT/TPR/M/248/Add.1 
Page 349 
 
 
  and evaluating specific sectors or large programmes and projects.  The Commission is 
flexible in adapting to the arrangements of the coordinating agency under a jointly agreed action plan. 
 As a coordinator the Commission works with EU 27 Member States to jointly fund 
programmes at country level, e.g. in Palestine the Commission coordinated and managed the 
joint funding of a common programme by several Member States. 
Furthermore, the Commission undertook reforms in its financial regulations for delegated 
cooperation, i.e., to channel funds through an EU Member State or to receive funds from EU  Member 
States to implement a common work plan and to re duce transaction costs.  Delegated cooperation 
may in certain cases also be adopted with dono rs other than EU Member States, subject to a 
preliminary assessment of their pr ocedures (this is presently on-goi ng with Australia, for example). 
Currently the Commission is proposing to introduce upstream harmonization with EU Member States 
beginning at joint programming level, i.e. join t planning of the combined support for a partner 
country programme over the 5-7 year programming cycle.   Examples are Haiti and South Sudan.  It is 
also being considered to possibly expand this ap proach for the next  programming cycle 2014-2020. 
 
Conformity Assessment 
 Question 8 
In Trade Policy Reviews and in the TBT Comm ittee, the Commission has advised that under its 
current laws, test results and certificates from conformity assessment bodies (CABs) in third countries are not generally accepted, and that there are very  limited opportunities for these CABs to participate 
in EU conformity assessment systems.  (WT/TPR/S/248 page 45, para 72). 
 
a) There are international systems for confor mity assessment that provide assurance of the 
competence of third country CABs – in partic ular, the ILAC and IAF peer reviewed mutual 
recognition arrangements – but the EU does not generally  rely on them.  What does the EU believe is 
missing from these arrangements that mean that they ar e unreliable?  Is the EU able to contribute to 
strengthening them?  b) The EU updated its harmoni zed conformity assessment framework  in 2008.  This framework 
could better support trade facilitation, in the spirit of Articles 6 and 9 of the TBT Agreement.  Has 
there been any reflection by the EU on how it coul d be improved, in its next legislative update, 
through encouraging reliance on the ILAC and IAF schemes?  
 
Answer  
The EU observes, in the first place, that the scope  for mandatory third-party conformity assessment 
under the New Approach legislation is limited, as the Report by the Secretariat notes, to those 
relatively few categories of products  which are regarded as posing a high level of risk for health and 
safety.  The EU has a long tradition of widely applying the supplier's declaration of conformity 
(SDoC) module as the preferred conformity assess ment procedure for low to medium risk products. 
Where SDoC applies, the manufacturer can have testing done by any laboratory of his choice, regardless of its location.  Due to the full applicat ion of regulatory impact assessment tools in the 
choice of the most appropriate and least burdensome conformity assess ment procedure, the scope for 
the application of SDoC continues to expand at every revision of existing legislation or adoption of  
new harmonizing legislation.  The criteria for th e choice of the appropriate conformity assessment 
procedure as laid down in Article 4 of Eu ropean Parliament and Council Decision 768/2008/EC 
confirm this policy. 
 
Secondly, the EU would like to recall the signifi cant flexibilities for the acceptance of foreign 
conformity assessment results that  are built into the New Legislative Framework.  Apart from the 
actual issuance of certificates, all other stages of conformity assessment (including full testing and 
factory inspections for quality a ssurance purposes) can be subcontracted out by EU Notified Bodies WT/TPR/M/248/Add.1 
Page 350  
 
 (NBs) to their non-EU subsidiaries or other non-EU conformity assessment bodies (CABs) in 
accordance with Article 20 of European Parliame nt and Council Decision 768/2008/EC.  Given that 
product testing and factory audits are the most exp ensive parts of conformity assessment, these 
flexibilities offer, in the EU's view, significant tr ade facilitation potential.  Non-EU CABs holding 
accreditation certificates issued by an accreditation body  member of IAF (International Accreditation 
Forum) or ILAC (International Laboratory Accredita tion Cooperation) will generally be presumed to 
fulfil the technical competence requirements to qualify as an eligible subcontractor. 
 Third, in addition to sub-contracting arrangements, international voluntary cooperation arrangements between CABs su ch as the IECEE CB scheme
57 or the IECEx scheme58, to which EU 
NBs actively participate, also offer an important avenue for the acceptance of foreign conformity 
assessment results in the regulat ed area in EU when, for the products and phenomena covered by 
those schemes, EU harmonizing legislation pr ovides for mandatory third-party assessment. 
 
Customs 
 
Question 9 
The Secretariat refers (WT/TPR/S/248 page 28, para  1) to the entry into force of the Modernized 
Customs Code.  a) In broad terms, what needs to be done to ensure that the implementing provisions for the 
Modernized Customs Code (MCC) become app licable by the June 2013 target date?  
b) Can you advise the status of the Trade Single Window initiative; a key element of the MCC?  
 
Answer  
a) The MCC has to be seen as a "package" togeth er with its implementing provisions and its IT 
systems in order to provide full benefits. 
Given the fact that for various reasons the supportin g IT systems will not be available at the target 
date but still need some more time to be developed a nd that the MCC Regulation has to be aligned to 
the Lisbon Treaty, insofar its implementing provis ions are concerned, the MCC cannot be applicable 
that date, but there will be a new amended MCC proposal which will postpone the application of 
MCC and will align it to the Lisbon Treaty. b) The Single Window initiative should not be considered as "a key element of the MCC" but as 
a part of the full package, presented by the Commi ssion in 2005 and containing also the eCustoms 
decision, where Single Window is indeed spelled out.   As regards the current status of the Single 
Window development, we refer to paragraph 9 (page 29/30) of the WTO Secretariat's report 
(document WT/TPR/S/248), which states:  "The Electronic Customs Decision instructed th e European Commission to evaluate, in partnership 
with member States, "the common functional sp ecifications" for a framework of single window 
services by 15 February 2011.  According to the Decision, single window services would involve the 
"seamless flow of data" between economic operato rs, customs authorities and other agencies, and the 
European Commission.  In addition, it would a llow economic operators to submit all information 
required for customs clearance, including inform ation required by agencies other than Customs.  
Member States endorsed the common functional spec ifications for the preparatory phase of single 
window services in December 2010.  The preparato ry phase focuses on the automated validation of 
the customs declaration's supporting documentation."  
                                                      
57 IECEE CB scheme: Worldwide System for Conformity Testing and Certification of Electrotechnical 
Equipment and Components (IECEE) - Certification Body (CB) Scheme. 
58 IECEx scheme: International El ectrotechnical Commission Scheme fo r Certification to Standards 
Relating to Equipment for Use in Explosive Atsmospheres WT/TPR/M/248/Add.1 
Page 351 
 
 
  EGYPT I 
 
Customs Procedures 
 
In Paragraph 3 page 28 the Secretariat stated:  "app eals procedures are set out in national legislation, 
and vary across member States.  Appeals must be  lodged in the Member State where the decision 
under dispute has been taken.  Most member States require administrative review before a decision can be appealed judicially.  The review by natio nal courts of a decision taken by the customs 
administration of one Member State is not binding on the customs administrations of other member 
States." 
 
Question 1 
Could the EU please explain whether the appeal pr ocedures set out in its national law fulfill its 
commitment under GATT Art. X:3(a) which reads as following:  "each contracting party shall administer in a uniform, impartial and reasonabl e manner all its laws, re gulations, decisions and 
rulings of the kind described in paragraph 1 of this Article."?  
 
Answer   
The EU confirms that our appeals systems if fully comp liant with Art. X:3.  First of all it should be 
underlined that appeal procedures a re specifically regulated by Article  X:3(b) of the GATT 1994.  In 
any event both concerning Article X:3(a) and X:3(b) in case DS 315 EC-Selected Customs matters the 
Panel and the Appellate Body con firmed that the EU administrative and judicial review system in 
customs matters is fully in line with the EU's GATT obligations.  Question 2 
In case of undue delay under the administrative re view in EU member states that require an 
administrative review before a decision can be app ealed judicially.  Do they allow the importer to 
bring the case to the next higher administrative level or  judicial appeal?  If yes what is the time period 
set out to allow the importer such right?  
Answer   
The period to exercise the right of appeal is set out  by national legislation.  In any event, paragraph 2 
of Article 6 of the Customs Code establishes that  where a person requests the customs authorities to 
give a ruling on a request, this shall be made within a period of time laid down in accordance with the 
existing provisions.  Any person who has applied to the customs authorities for a decisions relating to 
the application of customs legislation and has not obtained a ruling on that request within that period of time shall also be entitled to exercise the right of appeal (cf. Article 243.1 of the Customs Code).  
 
SPS Section  
In Para 99 of the Secretariat's report it is indicat ed that:  "apart from the emergency notifications, 
almost 60% of notifications specified the mu ltilaterally recommended 60-day period for public 
comment; for the rest, the EU considered that a comment period was not applicable, or the period 
between the publication of the notification and the adoption of the measure was less than 60 days. " 
 
Question 3 
We would like to seek clarification from the EU on the criteria on which the multilaterally 
recommended 60-day period for public comment, in almo st 40% of their notifications, was considered 
inapplicable? 
 
Answer   
During the period of time under study, the EU sent 17 notifications without specification of the 
60 days comment period.  Out of this number, 9 were identified as "Trade facilitating measures". WT/TPR/M/248/Add.1 
Page 352  
 
 According to paragraph 13 of document G/SPS/7/ Rev.3 (20 June 2008), "Recommended Procedures 
for Implementing the Transparency Obligations of the SPS Agreement":  "...Members should 
normally allow a period of at least sixty calendar days for comments, except for proposed measures 
which facilitate trade  ... and those which are substantially th e same as an international standard, 
guideline, or recommendation".  Of the last 8 notific ations, in 5 of them the EU invited to send 
comments without giving any period of time, writing in point 12 "final day for comments", "comments 
welcome anytime".  And for the 3 last notifications , the explanation is the following:  a) EEC/356 
referred to a recasting of previous legislation, no comment applied as the involved pieces of 
legislation were already into force;  b) EEC/357 area s affected by the measur e were only EU member 
states, no comments expected;  c) EEC/364, notifi ed for information, was an amendment to an 
existing  safeguard measure against the presence of me lamine in milk products from China in which 
the import controls were significantly decreased , and to enter into force 6 days later.  
 EGYPT II 
 
Question 4  
In paragraph 106 of the Secretariat report it is indicated that the General Food Law permits the 
establishment of ''provisional'' measures if ''the possi bility of harmful effects on health is identified but 
scientific uncertainty persists''. We recognize the right of every country to take th e necessary measures to protect its citizens from any 
harmful effects on health.  However, in cases where there's a scientific proof that a certain source of 
imports is not to be blamed fo r any harmful effects, would the EU be in a position to be using 
provisional measures, although there's not only l ack of scientific eviden ce but also a scientific 
certainty that this source of imports is not the reason behind a certain health problem?  
Answer 
The Agreement on Sanitary and Phytosanitary Measures (SPS) provides that measures adopted in the 
context of inadequate scientific evidence must respec t certain conditions.  Indeed, article 5.7 of the 
SPS agreement includes certain specific rules:  
• The measures must be of a provisional nature pending the availability of more reliable 
scientific data. • Research must be carried out to elicit th e additional scientific data required for a more 
objective assessment of the risk. 
• The measures must be periodically review ed to take account of new scientific data. 
Provisional measures, then, are taken only in the event of a potential risk, even if this risk cannot be 
fully demonstrated or quantified or  its effects determined because of the insufficiency or inclusive 
nature of the scientific data.  
 
CHINESE TAIPEI I 
 
Report by Secretariat (WT/TPR/S/248) 
II. TRADE POLICY REGIME 
(1) LEGAL AND INSTITUTIONAL FRAMEWORK  
(Page 16, paragraph 11) 
 Question 1 
It is stated in the report that:  "…a resolution by the Parliament would have no legal effect and could 
not be considered formal negotiating guidelines."  
(i) Does this statement mean that a "joint resolution" by both the Council and Parliament is 
required for it to be binding on the Comm ission and form negotiating guidelines?  WT/TPR/M/248/Add.1 
Page 353 
 
 
  (ii) Or, does it mean that neither the Council nor th e Parliament has the legal mandate to make 
negotiating guidelines binding on the Commission?  
 
Answer 
(i) No. Only the Council may issue negotiating directives. 
(ii) Only the Council may issue negotiating directives. 
 Question 2 
It is further stated that:  "the Council may agree to the provisional application of a trade agreement, 
which does not require Parliamentary consent."  
(iii) Could the EU please specify the conditions, short of an explicit objection from the Parliament, 
under which the provisional application of a trade agreement has to be discontinued?  
 
Answer 
There are no explicit provisions in the EU treaties on  the discontinuance of provisional application.  
It would depend on the agreement in question and the particular circumstances surrounding the 
agreement.  
 
(2) OBJECTIVES AND CONSULTATIONS  
(Page 17, paragraph 16) 
 
Question 3 The Civil Society Dialogue provides registered stak eholders with an opportunity to participate in 
dedicated meetings with the Commission on trade a nd trade-related issues.  Our questions are as 
follows: 
(i) Does the EU's FTA policy a pply to this mechanism? 
(ii) What qualifications are required for attending the meetings and what are the procedures?  
(iii) Can industries register to participate in the meetings? 
 
Answer 
(i) The Civil Society Dialogue covers all topics related to EU Trade Policy of interest for 
stakeholders.  Amongst other trade issues, mee tings to discuss FTAs are regularly organized.  
So far in 2011, there have been two meetings on bilateral negotiations, in February and in June 
(see link to the meeting list:  http://tr ade.ec.europa.eu/civilsoc/meetlist.cfm).  
(ii) To register to the Civil Society Dialogue, an organisation needs to be non-for-profit and based 
in the EU, EEA, Switzerland or in a country that is a candidate for accession to the EU.  Prior to registration, organisations also have to  be registered in the European Transparency 
Initiative (ETI) database. 
(iii) As a consequence of the non-for-profit requirement, businesses cannot be represented in the 
Civil Society Dialogue. However, their voice c an be heard through their representatives in non-
commercial business associations. 
 (3) 
PARTICIPATION IN THE WO RLD TRADE ORGANIZATION  
 
Page 18, paragraph 19 Question 4 
The report states that:  "the EU's top negotiating prio rity is to complete the Doha Round by the end of 
2011 at the latest."  
(i) Would the EU please explain how the above statement can remain true, given the current 
circumstances in which most Me mbers think it unlikely that the Doha Round can be concluded 
by the end of 2011.  WT/TPR/M/248/Add.1 
Page 354  
 
 (ii) Or, does the EU now have a new top negotiating priority? 
 
Answer 
At the time of writing of the report the EU, as oth er WTO members, was engaged in negotiations with 
the objective of concluding the Round in 2011.  Sin ce then, it has indeed become clear that the full 
Doha Round probably cannot be comp leted this year.  However, Doha remains the EU's priority, and 
we continue to be fully committed to taking the ne gotiations forward, including as regards a possible 
interim package of deliverables in December.  Page 18, paragraph 22 
Question 5 As indicated, neither the EU nor its member States has notified any new laws, or any changes to 
existing laws, regulations or administrative guidelin es, which significantly affect trade in services 
covered by specific commitments under this Agre ement under Article III.3 of the GATS since 1999.  
We have the following questions: 
(i) Up to 1999, the EU informed the Council for Trade in Services of its ne w or amended laws and 
related regulations.  Can the EU please describe in detail the notification criteria that were 
applied before 1999, and the reasons why it cha nged policy and ceased to notify such laws and 
regulations from then onwards?   
(ii) Does this policy change not impact on the WTO's transparency objective, which, according to 
page 5, paragraph 1 of the Re port by the European Union (WT/TPR/G/248) the EU considers to 
be "a fundamental component of an effective world trading system"?  
(iii) In the Secretariat Report, the Commission notes th at the strict application of Article III:3 would 
be "administratively impracticable".  With the significant advances in modern technology over 
the last decade, why has the EU not yet been able to overcome such difficulties? 
 
Answer 
The WTO report (Table II.1) clearly demonstrates that  the EU is fully committed to its transparency 
obligations existing in all areas of the WTO.  The EU firmly believes that transparency is a core 
principle underpinning the multilateral trading system, and is also important for trade in services. 
Article III:3 GATS contains an oblig ation to notify laws, regulations or administrative guidelines that 
"significantly" affect trade in services covered by a specific commitment.  The fundamental issue that 
could not yet be clarified in the framework of the WTO is when a measure has a "significant" effect on 
trade in services.  So far, there is no mutual, cl ear understanding amongst members in this regard 
which makes the strict application of Article XX: 3 administratively impracticable for the EU.  
The European Communities, after having notifie d a limited number of measures under Article III:3 
until 1999, discontinued notifying me asures because of this lack of  clarity about which measures 
should be notified.  Nonetheless, the EU is and has been open to discuss possible solutions to this 
question in the Council for Trade in Services.   (4) 
PREFERENTIAL TRADE AGREEMENTS AND ARRANGEMENTS  
(ii) Reciprocal preferences 
Page 22, paragraph 35 and page 24, paragraph 37 
Question 6 Paragraph 35 of the report notes that the EU has an  FTA in force with the CARIFORUM states, while 
paragraph 37 describes the EU's trading arra ngements with the CARIFORUM countries as being 
covered by an EPA..  
(i) Is there is any difference between an FTA and an EPA? 
(ii) Is an EPA based on Article XXIV of the GATT 1994 and Article V of the GATS? WT/TPR/M/248/Add.1 
Page 355 
 
 
  Answer 
The EU would like to clarify that the so-calle d Economic Partnership Agreements (EPAs) are Free 
Trade Agreements within the meaning of GATT 19 94 Article XXIV and GATS Article V.  In this 
regard, the EU and CARIFORUM states notified to  WTO this agreement in October 2008. Please 
refer to WTO documents WT/REG255/N/1/Rev.1 and  S/C/N/469/Rev.1.  
 
Page 25, paragraph 39  
Question 7 
As indicated, the EU signed an FTA with S outh Korea in October 2010 that will be applied 
provisionally from July 2011.  In February 2011, th e European Parliament gave its consent to the 
agreement, whose formal conclusion is subject to ratification by EU member States.  
Our questions are as follows: (i) Why will this EU-Korea FTA be applied only provi sionally? Is there a specific time limit on its 
duration? 
(i) If any EU member States are reluctant to ratify this FTA, how will the EU deal with this, in 
terms of the FTA's effectiveness and any rela ted problems of discord that might arise? 
(ii) Once this FTA is ratified by all EU member St ates, does it still need to be agreed by other 
organs of the EU before it can be entered into force? 
 
Answer 
The European Union and its Memb er States are parties to the Free Trade Agreement with South 
Korea.  As a consequence, the EU as well as all 27 Member States have to ratify the Agreement. 
Pending the completion of the procedures for its conclusion by the European Union and its Member 
States, the European Union decided to apply the Ag reement on a provisional basis in accordance with 
Art. 218, para. 5, of the Treaty on the Func tioning of the European Union.  The provisional  
application applies to all provisions of the FTA exc ept a small number of provisions as specified in 
Art. 3, para. 1, of the Council Decision 2011/265/EU of 16 September 2010, namely in the areas of 
criminal enforcement of intellectual property ri ghts and cultural cooperation that fall under the 
competence of the Member States.  The provisional application by the European Union also binds its 
Member States to ensure it is applied by the Europe an Union as well as its Member States.  Once the 
Agreement is ratified by all Member States, the Council is expected to decide on the conclusion of the 
Agreement.  No other institution has to agree to its  entry into force expect the European Parliament 
which already gave its consent.   
(5) 
INVESTMENT AGREEMENTS AND ARRANGEMENTS  
Page 26, paragraph 44 
Question 8 
The report indicates that a draft Regulation by the Commission establishing transitional arrangements 
for bilateral investment agreements between member  States and third countries seeks to maintain legal 
certainty for investors after the transfer of comp etence on foreign direct investment to the EU.  
Could the EU please explain: (i) How does the EU integrate the existing BITs th at member States have concluded with third 
countries? Please also provide a timetable or an update on the status of this work? 
(ii) Since competence on foreign direct investment is  being transferred exclusively to the EU, are 
there any investment-related issues regarding th e competence of member States?  If so, could 
the EU please provide examples?   
 WT/TPR/M/248/Add.1 
Page 356  
 
 Answer 
(i) Legal certainty refers to the existing level of investment protection provided through the 
network of almost 1200 agreements concluded by Member States.  The proposed Regulation 
reinforces with regards to European law the status of the bilateral investment agreements concluded 
by Member States with third countries, which ar e and remain valid under international law.  In 
accordance with its provisions, bilateral invest ment agreements between Member States and third 
countries can and will be maintained in force, in order to ensure the necessary level of protection for 
investors.  It is however a long term objective of th e EU's comprehensive investment policy that such 
agreements are replaced by agreements concluded at  EU level.  The proposal for this Regulation 
needs to be adopted by the Council and the European Parliament through the ordinary legislative 
procedure as defined in Article 289 and 294 of the TFEU.  This procedure is currently on-going.  
 (ii) The Lisbon Treaty integrates foreign direct in vestment into EU external trade policy, thus 
attributing to the EU exclusive comp etence in this area (see para. 2-3 and 43).  This is done by the 
new article 207 of the TFEU.  But EU competences go beyond the text of this article, since the 
articulation of investment policy should be consis tent with the Treaty's Chapter on capital and 
payments (Articles 63-66 TFEU), which provides that, in principle, all restrictions on payments and 
capital movements, including those involving direct as well as portfolio investments, both between 
Member States and between Member States and third countries, are prohibited.  The Commission has already stated in its Communication Towards a futu re European international investment policy that 
it does not consider it neither desirable nor feasible  to replace the investment promotion efforts of 
Member States, as long as they fit with the common commercial policy an remain consistent with EU 
law.   III. TRADE POLICIES AND PRACTICES BY MEASURE (3) 
MEASURE AFFECTING PRODUCTION AND TRADE  
(i) Business framework and foreign investment regime 
Page 64, paragraph 144 
Question 9 
Following the entry into force of the Lisbon Treaty in December 2009, the adoption of measures on 
direct investment between EU and non-EU memb ers requires the assent of the Council and the 
European Parliament.  
(i) Could the EU please provide examples of which measures need to obtain the assent of the 
Council and the Parliament? 
(ii) Will the EU be re-negotiating and signing once again existing treaties on investment between 
its members and non-EU members after the Lisbon Treaty takes effect? If so, which treaties 
will that involve? 
 Answer 
(i) The entry into force of the Lisbon Treaty br ought foreign direct investment within the common 
commercial policy, with regards to which the ordi nary legislative procedure applies (Articles 289 and 
294 TFEU).  
(ii) In accordance with the provisions of th e proposed future Regulation establishing transitional 
arrangements for bilateral investment agreements  between Member States and third countries 
(mentioned in par. 45 and question 5 above), bilatera l investment agreements between Member States 
and third countries can and will be maintained in force,   in order to ensure the necessary level of 
protection for investors.  The Regulation will, moreover, establish the conditions and the procedure 
under which Member States would be empowered to nego tiate new bilateral investment agreements or 
re-negotiate existing ones. It is however a long t erm objective of the EU's comprehensive investment 
policy that such agreements are replaced by agreements  concluded at EU level.  The aim is to achieve WT/TPR/M/248/Add.1 
Page 357 
 
 
  a situation where investors from both EU and from third countries will not need to rely on BITs 
concluded by one or the other Member State, but enjoy an effective and comprehensive EU-wide 
investment protection.  Since the proposed Regula tion is still under discussion between relevant EU 
institutions, no further information is available at this stage.    
(iii) Subsidies and other government assistance 
(c) Assistance in response to the financial and economic crisis 
Page 75, paragraph 180 
Question 10 
The report mentions that "the prolonged temporar y framework maintains the possibility of providing 
subsidized guarantees and subsidized loans, incl uding for the production of green products under 
stricter conditions."  
(i) Could the EU please advise what kind of green products are included, and whether there is any cap on the subsidized loans? Is there any regulation stipulating the number of items that can be 
subsidized? 
(ii) How are these measure in comp liance with the WTO SCM Agreement? 
 
Answer 
(i) The subsidised loans products for the pr oduction of green products are applicable to any 
investment loans for financing projects consis ting of the production of new products which 
significantly improve environmental protection.  Th at is, projects consisting of the production of 
products involving early adaptation to or going beyond future European Union product standards 
which increase the level of environmenta l protection and are not yet in force; 
There is not cap for the subsidised loans but the re duced interest rates can only be applied for interest 
payments until 31 December 2013.  An interest rate at least equal to the rate defined in the reference 
and discount rate Communication must apply to loans after that date.  
There is no specific regulation stipulating the number of items that can be subsidized.  
(ii) The aid measures concerned do not qualify as prohibited subsidies under the ASCM since 
they do not constitute export aid and are not c ontingent upon the use of domestic products. 
Furthermore, in view of the limited number of aid schemes concerned and the restrictive scope and 
conditions, as explained in the reply to (i), it is  highly unlikely that any adverse effects might be 
caused to the interests of other WTO members.  The EU is therefo re confident that any measures 
allowed under the Temporary Framework are in full compliance with the ASCM. 
 (vi) Intellectual property rights 
(a) Copyright and related rights 
Page 91, paragraph 238 
Question 11 We note from the report that in 2009 the Constituti onal Council of France appr oved a revised version 
of its "Hadopi Law", under which indi vidual internet subscribers must ve rify that their access does not 
infringe copyright legislation. It would be appreciated if the EU could share with us any details of 
results and statistics on the implementation of this la w at each stage of the "3-strike" procedure? 
Answer 
The most recent results and statistics are available in the Report published by Hadopi in May 2011, 
"Hadopi, biens culturels et usages d'internet : pra tiques et perceptions des internautes français. - 
2ème vague barométrique", available at: http://www.hadopi.fr/download/sites/defau lt /files/page/pdf/t1_e tude_longue.pdf 
 WT/TPR/M/248/Add.1 
Page 358  
 
 (b) Industrial property 
Patents 
Page 93, paragraph 243 
Question 12 
As indicated in the report, clean energy patents are classified in 160 categories, so that they can be 
identified more easily, and the EPO plans to create si milar databases for clean technology in the areas 
of transport, buildings, and agriculture.  
Could the EU please explain how "clean technology" is to be identified? 
 
Answer 
Details regarding the EPO's clean technology paten t scheme can be found on the EPO website, here: 
http://www.epo.org/news-issues/issues/clean-energy/ about.html and here:  http://www.epo.org/news-
issues/issues/clean-energ y/classification.html. 
 
It should be noted however that the EPO is not an  EU institution, and that the EU has not been 
involved in the development and im plementation of this scheme. 
 
(c) Enforcement 
Customs  
Page 96, paragraph 261 
Question 13 
As indicated in the Report, "[i]n almost half  of these detentions, the goods were destroyed 
immediately and in around a quarter of cases, a court case was initiated to determine the 
infringement."  
(i) Does that mean the detained goods in half of the cases were destroyed immediately without any 
court order or decision?  
(ii) If "yes", is that because owners of the detain ed goods refused to res pond or because the goods 
were perishable?  Or, are there other reasons? 
 
Answer 
According to Article 11 of Council Regulation 1383/ 2003, Member States may provide, in accordance 
with their legislation, for a simplified procedure, to  be used with the right -holder's agreement, which 
enables customs authorities to have such goods ab andoned for destruction under customs control,  
without there being any need to determine whether an intellectual property right has been infringed 
under national law. The EU recalls that Council Regulation 1383/2003 has b een challenged in the context of an on-going 
WTO dispute, and notes that it has responded to qu estions by the complainants on this and other 
matters.  
IV. DEVELOPMENTS IN SELECTED SECTORS 
(2) 
TRADE IN SERVICES  
(i) Introduction 
Page 116, paragraphs 50 and 51 of WT/TPR/S/248 
page 19, paragraph 88 of WT/TPR/G/248 
Question 14 
As indicated, the Services Directive was adopted in 2006, and the EU member States were provided a 
three-year transitional period to transpose the Direct ive into national legislation.  However, several WT/TPR/M/248/Add.1 
Page 359 
 
 
  member States missed the end- 2009 deadline, and work to impl ement the Directive continued 
throughout 2010.  In addition, the Services Direct ive applies only to EU citizens and legal entities 
established in the EU.  
Furthermore, as indicated on page 19, paragraph 88 of WT/TPR/G/248, significant efforts have been 
underway by the EU to remove the remaining regulatory and administrative obstacles to trade in 
services between Member States within the framework provided by the "Services Directive" and other 
sector-specific legislation and initiatives. 
We have the following questions: (i) How many EU member States have still neither transposed the Services Directive into national 
legislation nor carried it out within their territories? 
(ii) Does the definition of EU citizens, as stipulated by the Services Directive, include foreigners 
who have permanent residency in any EU member States? 
(iii) Does the definition of EU legal entities, as sti pulated by the Services Directive, adopt the 
concept of "substantial business opera tions" provided for in the GATS? 
(iv) The Services Directive does not oblige member St ates to consider changes applicable to non-
EU services suppliers.  Could this possibly result in inconsistencies in te rms of the criteria used 
to regulate non-EU services suppliers among these member States? 
(v) What are the regulatory and administrative obstacl es within the EU?  What kinds of mandatory 
or flexible means has the EU adopted to tackle  these obstacles, including resorting to judicial 
decisions? 
Answer 
(i) At this stage, the vast majority of Member States has fully implemented the Services Directive. 
Only six Member States have not totally finalized the implementation of th e Services directive but a 
full implementation on the whole EU territory is expec ted before the end of this year.  This does not 
mean that important administrative and legal chan ges haven't already been done in these Member 
States but that the full implementation is not achieved yet. 
 
(ii) No, in the sense of Article 4 of the Servi ces directive, "provider means any natural person 
who is a national of a Member State, or any legal person as referred to in Article 54 (ex -48) of the Treaty and established in a Member State, who offers or provides a service".  As a consequence, this definition does not incl ude foreigners who have permanent residency in an EU 
Member State. 
 
(iii) The definition of EU legal entities, as sti pulated by the Services Directive, is autonomous 
from the concept of "substantial business operations " provided for in the GATS.  EU rules and 
definitions are specific.  This definition refers to the Article 54 of the TFEU: 
 
"Companies or firms formed in accordance with  the law of a Member State and having their 
registered office, central administration or prin cipal place of business within the Union shall, 
for the purposes of this Chapter, be treated in  the same way as natural persons who are 
nationals of Member States. "Companies or firms" means companies or firms constituted under civil or commercial law, 
including cooperative societies, and other legal persons governed by public or private law, 
save for those which are non-profit-making." 
 
The Services Directive applies to services, defined as self-employed economic activities normally 
provided for remuneration.  The Services Directive appli es to all activities and sectors that are not 
expressly excluded from its scope of application. 
 WT/TPR/M/248/Add.1 
Page 360  
 
 On the contrary, the Services Directive does not apply to:  financial services;  electronic 
communications services and networks;  services in the field of transpor t;  services of temporary work 
agencies;  healthcare services provided by health  professionals to patients;  audio-visual services and 
radio broadcasting;  gambling activities;  social se rvices relating to social housing;  childcare and 
support of families and persons perman ently or temporarily in need wh ich are provided by the State, 
by providers mandated by the State or by charities re cognized as such by the State;  private security 
services;  services provided by notaries and bailif fs, who are appointed by an official act of 
government.   (iv) The Services Directive does not oblige member  States to consider changes applicable to non-
EU services suppliers.  As such modifications ap plying only to EU suppliers can result in different 
legal situation for EU suppliers and non-EU servi ces suppliers even though nothing prevent EU 
Member States, on an individual and voluntary basis , to have non-EU suppliers to benefit from the 
same rules as EU services suppliers.  
(v) Legal and administrative barriers to entrepren eurship can be very diverse.  Every direct or 
indirect legal or administrative rule or requirement than can make cross-border services and 
establishment more difficult is a potential barrier t hat needs to be assessed and solved if found 
disproportionate.  In the EU, notably in the process of elaboratin g and implementing the Services directive, some 
obstacles have been identified and various solutions  have been proposed in order to reduce or 
suppress these barriers. We can mention some of the obstacles which needed to be tackled.  For 
instance, legal form requirements constitute serious obstacles to the freedom of establishment in the 
sense that they limit the choice of business models and particularly affect service providers from other 
Member States, which may not be able to establis h unless they change their legal form or operate 
through a subsidiary.  Requirements fixing a mini mum number of employees can be also considered 
as obstacles, as these are burdensome for businesses,  which may need to employ more staff when 
entering markets in different Member States.  This is particularly so for small and medium-sized 
enterprises, which normally have a limited number of staff and may not be able to hire more. In 
response to these obstacles, the EU has launched targ eted actions to strengthen EU services markets, 
notably: 
 
 Making sure the Single Market works on the ground 
In 2011 and 2012, the Commission has started and will carry out a "performance check" of the 
Single Market for services from  the user's perspective. The obj ective is to identify specific 
practical problems that hamper the internal ma rket for services and how the interaction between 
different rules may have unintended effects.  
 Removing obstacles to cross-border services 
The "mutual evaluation" provided particular evide nce of difficulties in the cross-border provision 
of services without permanent establishment (wh ere the service provider is not permanently based 
in the country he/she is offering the service).  The Commission will closely monitor the effects of 
the Services Directive in this resp ect. A first progress report will be  published by the end of 2011 
and from then on annually.  The emergence of  new regulatory barriers to services in Member 
States' legislation must also be avoided.  
 From a legal perspective, in case an EU Member State maintains an existing legislation and/or 
requirement (constituting a "barrier") which is co nsidered by the European Commission to be 
incompatible with the Services Directive, th e European Commission can start an infringement 
procedure in order to obtain more information and to have a Member States modify its legislation (if 
it is still considered, after these exchanges, not com patible with the prescriptions of the Services 
directive).  WT/TPR/M/248/Add.1 
Page 361 
 
 
  If a Member State and the European Commission s till disagree on the compatibility of a national 
legislation with the Services directive (the same appl y to any other EU legal instrument), then the 
European Commission can call for the European Union C ourt of Justice to judge the compatibility of 
such a legislation.  Judgments of the EU Court of Justice are of course mandatory and can include 
financial sanctions for Member States whose legi slation would be judged as non-conform to EU 
legislation.  
(iv) Telecommunications and Postal Services 
(a) Telecommunications 
Page 131, paragraphs 95 and 96 
Question 15 It is noted from the report that few operators pr ovide pan-European services, and the packaging of 
these services differs from one member State to anothe r to satisfy variations in national requirements.  
The EU published "the Telecoms Reform" in 2009.   The transposition of the revised regulatory 
framework into national legislation by the 27 me mber States should be completed by May 2011.  
Our questions are as follows: 
(i) How do these few operators overcome the proble ms of not having a uniform legislation by 
national regulators to supply their services? 
(ii) Compared to the pan-European or packaging services supplied by the private operators, how 
effective is "the Telecoms Reform" of the EU? 
(iii) How will "the Telecoms Reform" be implemen ted smoothly within 27 member States of the 
EU? 
 
Answer 
(i) Despite the success of the EU regulatory fr amework in terms of increasing competition in 
Europe, lowering prices and offering a broad er range of products, networks in Europe 
remain national and the implementation of the current rules is still en trusted to national 
regulatory authorities.  Nowadays few opera tors offer services across several Member States 
and those wishing to extend their business to more than one Member State still need to 
comply with the requirements of national law. 
 (ii) It is for this reason that the reform of th e EU regulatory framework, in force since May 2011, 
instructs national regulators to contribute to  the development of the internal market by 
removing remaining obstacles to the provisi on of networks and services at European level, 
encouraging trans-European network and interoperability of pan-European services and  
cooperating with each other, with the Commi ssion and with BEREC to ensure a consistent 
regulatory approach.  Since the deadline for transposing the Telecom Reforms into national 
law was 25 May 2011, it is still too early to dr aw conclusions as to its effectiveness. 
 (iii) EU Member States had to notify the measu res transposing the revised regulatory framework 
into national law to the European Commissi on.  While all Member States are working on 
transposition and a majority of them have no tified measures to the Commission, only a 
minority of them have notified full transposition measures so far.  The European Commission 
monitors the transposition process closely, and will take legal action against Member States 
if appropriate. 
 WT/TPR/M/248/Add.1 
Page 362  
 
 Pages 131-132, paragraph 98 
Question 16 
The Commission proposed merging the agency in ch arge of network security (ENISA - the European 
Network and Information Security Agency) with BE REC, but this was not accepted by the European 
Parliament and the Council.  
(i) What were the reasons for the proposed merger? 
(i) If the intention was to improve the effectiveness of  management by simplifying authority in one 
agency, why was this not accepted by the European Parliament and the Council? 
 
Answer 
(i) The reasons for the European Commission behi nd the merger were to overcome many of the 
problems having been identified in the evaluati on of ENISA's operations.  For further info, 
please see: 
 http://ec.europa.eu/information_society/ policy/ecomm/doc/library/proposals/reg_eecma_en.p
df. 
 http://eur-lex.europa.eu/LexUriSer v/site/en/com/2007/com2007_0285en01.pdf. 
(ii) The European Parliament decided that the future European telecom agency (BEREC) should 
not be entrusted with competencies in the Ne twork and Information Security field; i.e. ENISA 
and BEREC would have to be kept separately. 
 Report by European Union (WT/TPR/G/248) 
 
2. KEY DEVELOPMENTS IN THE EU 2.1  Institutional developments 
Page 6, paragraph 14 
Question 17 
The EU report states that the Lisbon Treaty modifi es the way the EU reaches decisions on many day-
to-day issues, and legislation is currently unde rway to adapt the decision-making procedures of 
existing trade legislation to the new rules of TFEU.  
(i) We would appreciate having further details of how the decision-making process is changed by 
the Lisbon Treaty?  More specifically, how are th e different institutions and member States of 
the EU involved in the process?  
(ii) How is the "Trade Policy Committee" composed and how does it function? 
Answer 
(ii) According to Article 207 of the Treaty of Li sbon, it is the role of the European Commission to 
negotiate the EU's trade policy, but it should do so in consultation with a "special committee" 
appointed by the European Council.   The Trade Policy Committee (TPC ) is the "special Committee" 
referred to in the Treaty.  The TPC is made up of representatives from each EU Member State and is 
chaired by the rotating EU Presidency.  The Co mmission of course also attends.  The Commission 
consults with Member States on a regular basis through this Comm ittee by informing Member States 
about developments in trade policy issues and negotia tions and taking on board their views and ideas. 
 Question 18 
Japan and the EU released a joint press statement on 28 May of this year indicating that both agreed to 
start the process of parallel negotiations for a comprehensive FTA/EPA.  According to the EU's trade policy, "Global Europe", Japan was not included on the EU's priority list of countries for the signing of an FTA, but now the Commission has decided to embark on a scoping exercise with Japan. 
(iii) Are there any steps or procedures the Commission should take with a view to changing their 
trade policy?   WT/TPR/M/248/Add.1 
Page 363 
 
 
  Answer 
In its Communication on "Trade, Growth and World Affairs. Trade Policy as a Core Component of 
the EU's 2020 strategy" adopted on 9 November 2010. the EU set out its trade agenda for the period 2010-2014.  This new trade policy explicitly mentions Japan as one of  the big economies with which it 
is important for the EU to deepen trade and invest ment links with.  The Communication also refers to 
the joint High-Level Group which was entrusted, at  the annual Japan-EU summit that was held on 
28 April 2010, with the task of identifying options for the strengthening of EU-Japan trade and investment relationship and defining the framework for implementing it.  In light of this work, Summit 
leaders agreed at their last Summit on 28 May 2011 to start the process for negotiations of a deep and 
comprehensive Free Trade Agreement (FTA).  They also d ecided, to this end, t hat the two sides would 
start discussions with a view to defining the sc ope and level of ambiti on of both negotiations.  
 Page 6, paragraph 15 Question 19 
The Treaty of Lisbon creates important institutional  innovations that impact the EU's external 
activities.  An important one of these is the appointment of a President of the European Council.  
(i) What is the rationale for creating this new position? 
(ii) What duties will the EU give to the President? 
(iii) How will the creation of a President of the Eu ropean Council affect the Rotating Presidency 
System of the Council, and how do these two systems communicate with each other? 
 
Answer 
The decision to appoint a President of the Europe an Council was taken by unanimity of the Heads of 
State and Government of all the EU Member states.  According to Article 15 (6) of the Treaty on the European Union, the President of the European 
Council:  
 chairs it and drives forward its work;  
 ensures the preparation and continuity of the work of the European Council in cooperation with 
the President of the Commission, and on the basis of the work of the General Affairs Council;  
 endeavours to facilitate cohesion and con sensus within the European Council;  
 presents a report to the European Parliament after each of the meetings of the European Council.  
He also, at his level and in that capacity, ensu res the external representation of the Union on issues 
concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Forei gn Affairs and Security Policy.. 
 
3. KEY DEVELOPMENTS IN TH E EU TRADE POLICY (2009-2010) 
3.5 Bilateral and regional trade relations 
Page 20, paragraphs 92 and 93  
Question 20 
The EU has recently signed an FTA with South Korea and negotiations for bilateral free trade 
agreements were launched with Singapore and Malaysia in 2010. 
(i) What criteria does the EU use in choosing pa rtners in Asia with which to launch FTA 
negotiations?  
(ii) What are the EU's reasons for choosing Singa pore and Malaysia as the first two ASEAN 
countries with which to launc h bilateral FTA negotiations? 
 WT/TPR/M/248/Add.1 
Page 364  
 
 Answer 
The European Union and ASEAN countries decided in 2007 to launch FTA negotiations on a bi-
regional basis.  In 2009, both sides took a pause to reflect on the futu re architecture of these 
negotiations.  Subsequently, the Eu ropean Union decided, pending the resumption of the bi-regional 
negotiations, to invite all ASEAN countries that a re able and willing to share the European Union's 
objective for an ambitious and comprehensive FTA to e ngage with the European Union at a bilateral 
level.  Singapore and Malaysia were the first to s hare these ambitions and declared their willingness 
to launch FTA negotiations with the European Unio n.  The European Union remains open to other 
ASEAN countries able and willing to engage with the European Union in ambitious free trade 
agreement negotiations.  
 
CHINESE TAIPEI II 
Report by Secretariat (WT/TPR/S/248) 
Page 94, footnote 277 
Question  
It is explained in the footnote in the report that, "[a] TSG (traditional speciality guaranteed) is not a GI 
as it highlights traditional characters in terms of  composition and/or method of production."  
Our understanding, therefore, is that a TSG is a generic term applied to a product with special, 
traditional formulation or production characteristics (w hich may sometimes be associated with and/or 
named after a particular place or region as well). (i) If a product imported from a non-EU country carri es wording that is the same as, or similar 
to, a TSG registered in the EU, would such product be required to comply with the TSG regulations? 
(ii) Does the EU plan to promote this system to non-EU countries?  
 
Answer 
To be registered as a TSG, the name shall:  (a) be specific in itself, or (b) express the specific 
character of the agricultu ral product or foodstuff. 
Moreover, a name expressing specific character may not be registered if, inter alia, it refers only to 
claims of a general nature used for a set of agricu ltural products or foodstuffs, or to those provided 
for by particular EU legislation.  TSG names can be registered 'without reservation of th e name'. In that case the name can be used 
freely, but only products made in accordance w ith the specification can be labelled with the 
Community symbol, indication "Traditional Speci ality Guaranteed" or the abbreviation "TSG".  
Names can alternatively be registered 'with reserva tion of the name', in which case the name can only 
be used to describe the product made that corresponds to the specification.  
 
The TSG system is open to non-EU countries. 
 
INDONESIA 
 
I. RESTRICTIONS AND CONTROLS 
As noted in the report by Secretariat, in October 2010, the EU adopted legislation which prohibits the 
placing of illegally harvested timber, and timber pr oducts containing such timber, on the EU market. 
Under Regulation No. 995/2010, "o perators" who place domestically produced or imported timber 
and timber products on the EU market for the first tim e must exercise "due diligence" to minimize the 
risk that such products contain timber harvested in contravention of the applicable legislation in the 
country of harvest. Indonesia expressed its appreciati on to the European Union for continuing to work 
to combat illegal logging.  Through Regulation Numb er 995/2010, it is expected that illegal logging WT/TPR/M/248/Add.1 
Page 365 
 
 
  practices, which harm the environment and enda ngered animals, will be reduced ((WT/TPR/S/248 
page 44 Para 71).  
Question 1 
Could the EU please explain further the way in which due diligence practices can be conducted, as required in Regulation No. 995/2010?    
 
Answer 
The "due diligence" requirements in Regulatio n 995/2010 follow a risk management approach in 
which operators are required to obtain certain inform ation about their supply of timber, to assess the 
information against certain risk criteria and to mitig ate the risk (of illegal timber in the supply chain) 
if the risk is not considered negligible.  The Regulation foresees further elaboration of the "due 
diligence" requirements through "detailed rules" - a form of secondary legislation.  Discussions are 
currently on-going on the elaboration of th ese rules, which will be adopted by 3rd June 2012.  A study 
has been commissioned to look at existing best pr actice in the sector in relation to systems to exclude 
illegally harvested timber from supply chains.  Th e study is intended to provide inputs for the 
elaboration of the detailed rules and will shortly  be available on the European Commission's DG 
Environment website.   
 II. TECHNICAL REGULATIONS AND STANDARDS 
Under the Master Plan (Acceleration Expansi on and Economic Development of Indonesia 2011-
2025), the government would encourage greater va lue-added commodities from Indonesia, a country 
which is also the leading exporter of commodities to the European Union. A number of commodities, 
previously exported in the form of raw materials, will be processed first and exported. This activity 
will stimulate economic growth and job creation.  To ensure that products meet European Union 
standards and market needs, it would be very help ful if the European Union could provide assistance 
(capacity-building) to both the government and producers in Indonesia.  
 
Question 2 
Could you confirm whether it would be possible for the European Union to provide capacity building 
in this field?  What form would this capacity bu ilding take and where would it take place?  Would a 
capacity-building initiative also be associated with a number of EU regulations which are currently 
are strictly enforced? (Document WT/TPR/S/248, Page 45 Para 72) 
 
Answer 
The EU is providing capacity building to Indon esia since several years both bilaterally and through 
regional programmes and covering in particular trade rel ated technical assistance.  This assistance 
will continue in a reinforced way in the fram ework of the Partnership and Cooperation Agreement 
signed in 2009The current programme, the EU-Indon esia Trade Support Programme II, has already 
started its activities with the completion of two studies on Market access oppor tunities for Indonesian 
exports to the EU and on the Analysis of the I ndonesian export quality infrastructures.  The 
Indonesian Government is directly involved in the planning and delivery of this assistance through the 
Project Steering Committee and comments and sugges tions for activities are channelled through this 
Committee.  For further information, please refer to:  http://eeas.europa.eu/delegations 
/indonesia/documents /eu_indonesia/tsp2_en.pdf.  
 III. SANITARY AND PHYTOSANITARY 
1. Under Regulation No. 882/2004, the Commission may recognize specified pre-export checks 
that a non-EU member State carries out on feed  and food.  The Commission also recognizes pre-
export controls carried out by the United States on peanuts and derived products with respect to WT/TPR/M/248/Add.1 
Page 366  
 
 aflatoxins.  The EU is discussing with Canada th e possibility of recognizing Canada's pre-export 
checks of wheat and certain derived products with respect to ochratoxin A.  Furthermore more, according to Regulation No . 882/2004, nutmeg products from Indonesia face 
certain trade barriers in the EU market.  For exam ple, Indonesian nutmeg products were rejected by 
Rotterdam Port authorities as they were suspected of containing levels of aflatoxin which exceeded 
the minimum threshold set by the EU.  
 
Question 3 
Does the EU have scientific evidence which proves th at the nutmeg from Indonesia contains levels of 
aflatoxins which exceed the minimum threshold?  Could you please clarify whether you could provide 
training to improve the skills necessary for dea ling with aflatoxin to the Indonesian authorities? 
(Document WT/TPR/S/248, Page 60 Para 119). 
 
Answer   
Yes, there is scientific evidence that nutmeg from  Indonesia is exceeding the EU maximum level for 
aflatoxins (see the table below, ta ken from the Rapid Alert System for Food and Feed).  Since mid-
2009 there are 12 notifications with non-compliant levels of aflatoxins in nutmeg from Indonesia.  The EU, through the program "better training for saf er food", could provide Indonesian authorities with 
specific training on control of aflatoxins. 
 
date reference product 
type notification 
type notification 
basis Notified 
By Origin subject 
20/12/2000 2000.MT Food information   Italy from 
Indonesia aflatoxins in nutmeg 
14/01/2002 2002.014 Food alert   Germany from 
Indonesia aflatoxins (B1: 24 - B2: 3,1 
- G1: 0,9 G2: 0,5 - Total: 
29 µg/kg - ppb) in Nutmeg 
- ground 
20/09/2002 2002.322 Food alert   Germany from 
Indonesia aflatoxins (28,5 µg/kg - 
ppb) in Nutmeg - whole 
and powder 
20/07/2005 2005.511 Food alert official 
control on the 
market Finland from 
Indonesia aflatoxins (B1 = 9.7; Tot. = 
10.5 µg/kg - ppb) in 
ground nutmeg from 
Indonesia 
5/08/2005 2005.557 Food alert official 
control on the 
market Portugal from 
Indonesia aflatoxins (B1 = 14.2; Tot. 
= 17.1 µg/kg - ppb) in 
ground nutmeg from 
Indonesia via Spain from Spain 
2/12/2005 2005.879 Food alert official 
control on the 
market Hungary from 
Indonesia aflatoxins (B1 = 8.8 µg/kg 
- ppb) in nutmeg from 
Indonesia via the 
Netherlands from 
Netherlands 
  
20/12/2007 2007.0950 food alert official 
control on the 
market Slovakia from 
Indonesia aflatoxins (B1 = 384.5; 
Tot. = 455.3 µg/kg - ppb) 
in whole nutmeg from 
Indonesia, via the 
Netherlands and via 
Germany from 
Germany 
from 
Netherlands 
2/04/2008 2008.0388 food information official 
control on the 
market Czech 
Republic from 
Indonesia aflatoxins (B1 = 14.45; 
Tot. = 17.6 µg/kg - ppb) in 
ground nutmeg from 
Indonesia, via the 
Netherlands from 
Netherlands 
(cont'd) WT/TPR/M/248/Add.1 
Page 367 
 
 
  date reference product 
type notification 
type notification 
basis Notified 
By Origin subject 
13/05/2008 2008.0555  food information official 
control on the 
market Belgium from Belgium aflatoxins (B1 = 7.6 µg/kg 
- ppb) in prepacked ground 
nutmeg from Belgium, raw 
material from Indonesia Raw Material 
from 
Indonesia 
  
22/09/2008 2008.BLY food border 
rejection border control 
- consignment 
detained Netherlan
ds from 
Indonesia aflatoxins (B1 = 18.0 
µg/kg - ppb) in nutmeg 
from Indonesia 
15/06/2009 2009.0766 food alert official 
control on the 
market Czech 
Republic from 
Indonesia aflatoxins (B1 = 21.9; Tot. 
= 30.3 µg/kg - ppb) in 
ground nutmeg from 
Indonesia, via the 
Netherlands from 
Netherlands 
25/06/2009 2009.0814 food alert official 
control on the 
market Slovakia from 
Indonesia aflatoxins (B1 = 28.9; Tot. 
= 33.0 µg/kg - ppb) in 
whole nutmegs from 
Indonesia, via the 
Netherlands and via 
Germany from 
Germany 
from 
Netherlands 
  
3/12/2009 2009.CBP food border 
rejection border control 
- consignment 
detained Netherlan
ds from 
Indonesia aflatoxins (B1 = 120; Tot. 
= 140 µg/kg - ppb) in 
nutmeg from Indonesia 
23/03/2010 2010.0375 food alert official 
control in 
non-member 
country Commiss
ion 
Services From 
Germany aflatoxins (B1 = 0.0203; 
Tot. = 0.0241 mg/kg - 
ppm) in ground nutmeg 
from Germany, with raw 
material from Indonesia Raw Material 
From 
Indonesia 
26/03/2010 2010.0391 food alert official 
control on the 
market Germany from 
Indonesia aflatoxins (B1 = 6.4 µg/kg 
- ppb) in ground nutmeg 
from Indonesia 
23/07/2010 2010.1018 food information company's 
own check United 
Kingdom from 
Indonesia aflatoxins (B1 = 6.4; Tot. = 
10.1 mg/kg - ppm) in 
nutmeg from Indonesia 
19/08/2010 2010.1143 food information company's 
own check Germany from 
Indonesia aflatoxins (B1 = 42.0; Tot. 
= 53.1 / B1 = 56; Tot. = 
70.5 / B1 = 43.5; Tot. = 
60.4 / B1 = 13.7; Tot. = 
16.6 / B1 = 11.9; Tot. = 
14.7 µg/kg - ppb) in 
ground nutmeg from 
Indonesia, via the 
Netherlands from 
Netherlands 
26/10/2010 2010.BVK food border 
rejection border control 
- consignment 
detained Netherlan
ds from 
Indonesia aflatoxins (B1 = 57 µg/kg - 
ppb) in nutmeg shrivels 
from Indonesia 
2/12/2010 2010.CEF food border 
rejection border control 
- consignment 
detained Netherlan
ds from 
Indonesia aflatoxins (B1 = 45; Tot. = 
46 µg/kg - ppb) in nutmeg 
from Indonesia 
2/12/2010 2010.CEG food border 
rejection border control 
- consignment 
detained Netherlan
ds from 
Indonesia aflatoxins (B1 = 23; Tot. = 
24 µg/kg - ppb) in nutmeg 
from Indonesia 
2/12/2010 2010.CEH food border 
rejection border control 
- consignment 
detained Netherlan
ds from 
Indonesia aflatoxins (B1 = 25; Tot. = 
30 µg/kg - ppb) in nutmeg 
from Indonesia 
26/05/2010 2010.AXX food border 
rejection border control 
- consignment 
detained Netherlan
ds from 
Indonesia aflatoxins (B1 = 100; Tot. 
= 105 µg/kg - ppb) in 
nutmeg shrivels from 
Indonesia 
 WT/TPR/M/248/Add.1 
Page 368  
 
 In according with Commission Regulation EU No . 142/2011 of 25 February 2011 "Implementing 
Regulation EC) No. 1069/2009 on the European Par liament and Council laying down health rules as 
regards animal by-product and derived products  not intended for human consumption and 
implementing Council Directive 97/78/EC as regar ds certain samples and items exempt from 
veterinary checks at the border under that directive", th e new legislation sets out requirements for the 
listing of establishments and plants in third countries that are authorized for imports into EU.  These 
establishments and plants shall be entered into the TRACES system in accord ance with the technical 
specifications which are published by the Commi ssion in its website: http://ec.europe.eu 
/food/biosafety/establisments/animal_byproducts_en.htm. 
 
Question 4 
From the period 1 May 2011 only, commodities from esta blishments and plants that are listed on this 
web page will be authorized for entry into the EU .  Could the European Union explain further about 
the possible consequences if Indonesian exporte rs complete the registration after 1 May 2011? 
(Document WT/TPR/S/248, Page 58 Para 114) 
 
Answer   
After 1 May 2011 only imports of animal by-product s which originate from establishments entered in 
TRACES may be allowed.  The competent authority  of third country must notify to the Commission  the 
list of approved or registered establishments in the field of animal by-products.  Notification should 
be in the format of Table laid down in Chapter II of Annex II to the Technical specification for the 
listing of establishment.  More information available on DG SANCO web page: 
http://ec.europa.eu/food/food/biosafety/est ablishments/animal_byproducts_en.htm. 
 
Concerning the European Union's policies towa rds the import of animals and animal products 
intended for human consumption, cherry stuff produc t of Indonesia has experien ced barriers to trade 
to the EU through the EU Regulatory Commission Regulations Number 605/2010, dated 2 July 2010 
referring to animal, public health and veterinary c ertification conditions for the introduction into the 
European Union of raw milk and dairy produc ts intended for human consumption. 
 Question 5 
Could the EU please outline in more detail the basi c restrictions placed on cherry stuff products 
imports from Indonesia in relation to regulation No. 605/2010?  (Document WT/TPR/S/248, Page 57 
Para 109).  
Answer   
In order to reply to this question, the EU woul d request Indonesia to provide more information on the 
category of the product "cherry stuff" they refer to.   
As noted in the report by Secretariat, the imports of live animals and products of animal origin are 
prohibited unless they are from a country or reg ion that has received prior approval, and thus 
appears on the relevant "third country list" managed by the Commission.  The term "products of animal origin" covers food derived from animals or  coming from animals, whether processed (e.g., 
ham, marinated fish, egg powder, and gelatine) or  unprocessed (e.g., fresh meat, fishery products, 
raw milk, eggs, and honey).  Related imports of live animals and products of animals, especially in the 
fisheries sector, is carried out in line with the regulations of the European Union Directive 220/2010. 
Indonesia is obliged to control 20% of its fish produ ct exports to the European Union, until now there 
has been no scientific evidence showing Indonesia' s fish exports contain an tibiotics. Indonesia has 
therefore requested that this provision is revoked as  it is obstructing fish expor ts from Indonesia to 
the European Union.  (Document WT/TPR/S/248, Page 57 Para 109). 
 WT/TPR/M/248/Add.1 
Page 369 
 
 
  Answer  
First, the EU would like to clarify that the control of 20% of the Indonesian exports is carried out by 
the EU Member States, not by the Indonesian authoriti es.  Concerning the scientific evidence that give 
origin to the measure, please find an update on the state of play as regards Commission Decision 2010/220/EU: 
Following the EU inspection mission carried out in  Indonesia in 2010 on residues of veterinary 
medicines that identified a number of structural  shortcomings, the Commission introduced some 
stringent measures that still allow trade to continue.  Since then, the Commission has carried out assessme nt of the response prov ided by the competent 
authorities in Indonesia and welcomes the actions implemented since then by Indonesia.  So far 
Member States have not reported problems related to the finding of residues of veterinary medicines 
at the EU border.  However, given the seriousness of the findings of last inspection mission and 
information provided by Indonesia, the EU consid ers that the measure could be revised only if follow 
up audit confirms that shortcomings are rectified. 
 
IV AGRICULTURE 
As noted in the report by Secretariat, the EU expor t subsidy regime has not changed substantially over 
the past few years.  Under its WTO commitments, the EU can use export subsidies for 20 different 
product groups, 10 of which actually  received subsidies in the 2007/08 marketing year, (the most 
recent year in which a notification was made).  The amount of export subsidies can vary from one 
product to another and from one market to anothe r depending on domestic reforms and world prices 
for agricultural products.  The conclusion of the Doha Development Agenda (DDA) round is also 
dependent on the lowering, or the elimination, of su bsidies in developed countries.  However, in fact, 
until recently, European Union subsidies increased from y ear to year.  We consider that this shows the 
European Union's lack of commitment to reduce subs idies which in turn can lead to distortions of 
international trade.  As a major country which play s an important role in the completion of the DDA 
round of negotiations, the EU should be committe d to revising the policy of subsidies.  
 
Question 6 
Could the EU outline the concrete steps being taken to reduce or remove your subsidies? 
(WT/TPR/S/248, Page 110 Para 38).  Answer  
The EU use of export refunds has continued to de cline over the years.  In 2007/08 the budgetary 
spending on export refunds was at EUR 850 million, in 2008/9 it further declined to EUR 450 million. 
The EU 2011 budget contains an appropriation of EUR 161 milli on for export refunds, which 
represents 0,4 % of the total estimated CAP exp enditure for market interventions and direct aids. 
The EU remains committed to the conclusion of the DDA negotiations which should lead to the 
parallel elimination of all form s of export subsidies and discipl ines on all export measures with 
equivalent effect, as part of a comprehensive,  ambitious and balanced package under the Single 
Undertaking, including domestic support and mar ket access provisions as established in the 
December 2008 draft modalities, but also TRIPS issues, namely GI register and GI extension. 
 
V. OTHERS 
Indonesian Questions Regarding The Europe an Union's Renewable Energy Directive (EU-
RED)  
Indonesia fully understands that the reasoning behind  this draft regulation which is to reduce vehicle 
emissions containing carbon dioxide (CO
2) which cause the increase of greenhouse gas emissions and 
undermine environmental sustainability.  In this re gard, Indonesia would like to request clarification 
from the EU on a number of issues. WT/TPR/M/248/Add.1 
Page 370  
 
 Questions 7 
1. Could the EU confirm whether default valu es have already been revised? How long does the 
process take and what are the procedures, including in terms of decision-making? 2. Based on Article 19, Paragraph 6 of the EU  RED Regulation, the Commission shall, by 
31 December 2010, submit a report to the European  Parliament and to the Council reviewing the 
impact of indirect land-use change on greenhouse g as emissions and addressing ways to minimize that 
impact by 31 December 2010.  Indonesia would lik e to know more about this report and ask whether 
it is open to the public. 
Answer 
1. The "default values" which form part of the framework of the EU sustainability criteria for 
biofuels can indeed be adapted to technical and sci entific progress.  No such adaptation has yet taken 
place and no decisions have yet been taken on when the "default values" would be adapted for the 
first time.  The adaptation would follow the procedure set out in Articles 5a(1) to (4) and Article 7 of Council Decision 1999/468/EC (OJ L 184, 17.7.199 9, p. 23–26) as amended by Decision 
2006/512/EC (OJ L 200, 22.7.2006 p.11).  This invo lves inter alia a vote of the Committee on 
Sustainability of biofuels and bioliquids (est ablished by Directive 2009/28/EC) composed of 
representatives of the Memb er States after the Commission has sent a draft decision to the Committee. 
The duration of the process depends on the outco me of the vote. The Commission's approach for  
adapting the default values is further explained  in the June 2010 "Communication from the 
Commission on voluntary schemes and default values in  the EU biofuels and bioliquids sustainability 
scheme" (OJ 2010/C 160/01). 
2. The Commission adopted on 22 December 2010 the "Report from the Commission on indirect 
land use change of biofuels and bioliquids".  The report carries reference "COM(2010)811 final" and 
is publicly available.  As mentioned in the re port the Commission is currently finalizing its impact 
assessment on this topic.  
THE PHILIPPINES 
 
TRADE POLICY REGIME 
 
(4) PREFERENTIAL TRADE AGREEMENTS AND ARRANGEMENTS  
(i) Unilateral preferences 
Question 1 
We note paragraph 29 of the Secretariat report that  the overall importance of QSP in total EU imports 
is low. For example, in 2008 some 86% of total EU imports entered under MFN, compared with around 5% under standard GSP, G SP+ and EBA.  Given that GSP preferences are important in 
particular sectors and for developing and least-dev eloped countries, is the EU looking further into 
improving the utilization of the GSP scheme? 
 
Answer   
The Commission's proposal for a new EU GSP scheme has precisely that objective in mind.  By 
focusing preferences on countries mo st in need (Least-Developed Countries (LDCs) and other low- 
income countries), the EU GSP scheme will boost expor ts of developing countries in line with their 
genuine trade, financial and development needs as de fined in accordance with transparent, clear and 
objective criteria widely used by the international community. 
 
(ii) Reciprocal Preferences 
Question 2 
The EU has continued to improve its bilateral rela tions by engaging ¡n a number of countries, with 
nine (9) FTAs signed/concluded/launched in 2010. WT/TPR/M/248/Add.1 
Page 371 
 
 
  a.. How does the EU ensure that the provisi ons provided for in the FTAs are mutually 
reinforcing with the multilateral trading system? b. Does the EU follow guidelines in its FTA negotia tions that would avoid significant trade and 
investment diversion and ensure that the provisions in each of the FTAs minimize creating overlapping sets of trade rules and regulations th at make sourcing products to different markets 
complicated and more costly? 
Answer   
In parallel to our active participation and firm commitment to the multilat eral system, the EU has 
pursued complementary trade liberalization at bo th regional and bilateral levels.  We have 
consistently defined our FTAs in ways that ensu re these complement the multilateral trading system, 
and that make them a stepping stone rather than a stumbling block for further multilateral trade 
opening.  
In accordance first with its "Global Europe " strategy, and re-emphasized in our new trade 
communication "trade, growth and jobs ", the EU has decided to aim at  a new generation of FTAs that 
extend beyond present agreements and build towards future multilateral negotiations.  The EU thus 
seeks FTAs which are - in line with the letter and the spirit of the WTO Agreements - comprehensive 
in scope and deep in terms of level of commitment,  in both goods and services.  Particular emphasis is 
placed on tackling regulatory and non-tariff obstacl es to trade.  Likewise, our FTAs also address 
areas such as intellectual property rights, investme nt and government procurement.  The EU follows 
a consistent approach in negotia ting its FTAs, and therefore, it carefully ensures that there are no 
overlapping sets of trade rules and regulations.  As  noted above, our FTAs aim to represent building 
blocks to the multilateral trading system.  
TRADE POLICIES AND PRACTICES BY MEASURE 
 
(1) MEASURES DIRECTLY AFFECTING IMPORTS  
(iii) Rules of origin 
Question 3 
We note paragraph 19 of the Secretariat Report th at in October 2010, the European Parliament 
adopted the Commission's proposal for a regulation establishing a scheme for origin making.  Would the EU provide additional salient information on th is new scheme and how different it is from the 
previous schemes adopted. 
 
Answer  
There is no legislation on origin marking presently in force in the EU.  Horizontal legislation (notably 
Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices 
in the internal market) generally provides that in formation provided to the consumer shall not be 
misleading. 
The proposed scheme – not yet in force - would lay do wn specific rules regardi ng the indication of the 
origin of some industrial goods imported from third countries with a view to improving consumer 
information.  
The Commission put forward its proposal for a regula tion on the indication of the country of origin 
on 16 December 2005.  Following the entry into force of the Lisbon Treaty, the European Parliament 
became co-legislator on this proposal, which is to  be adopted according to the ordinary legislative 
procedure.  Following the adoption of the Resolution of the European Parliament in October 2010, 
the discussions are going on in the Council, who is not  legally constrained by  any time-limit at this 
stage of the procedure. 
 WT/TPR/M/248/Add.1 
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 DEVELOPMENTS IN SELECTED SECTORS 
 
(2) TRADE IN SERVICES  
 
(a) Banking 
Question 4 
The results of a survey launched by the EU Commission on the barriers to cross-border banking in 
Europe highlighted some problems. Based on the res ponses of market parúcipants, some exercise of 
supervisory powers and political interference remained to be α major barrier to the European banking 
markets' integration (European Commission).  Consid ering that barriers exist even among the EU member 
countries, it may be more difficult for countri es outside EU to enter the banking market. 
 
1. How does the region address the said issue? 
2. Can the RU provide updates on the entry/regul atory requirements of ba nks especially  those 
coming from countries outside the EU? 
 
Answer  
We are not aware of the survey referred to.  Could you please provide the reference.  
EU legislation provides for minimum standards of  harmonization of banking regulation across the 
EU.  The underlying notion for cross border banking is  the single passport.  Once a credit institution 
has obtained a licence from one Member State authority  that licence is recognised  across the rest of 
the EU and the credit institution does not need to a pply for any further authorisations in order to 
supply banking services in other Member States.  There are no additional requirements for the establishmen t of third-country banks' subsidiaries.  The 
requirements for the establishment of third-count ry branches are regulated at Member State level. 
In case Member States would not grant the right of cross border provision of banking services the 
banks concerned can enforce its rights by submitting a complaint to the European Commission which, 
if necessary, can bring a case to the European Court of Justice.   PERU I 
POLÍTICAS Y PRÁCTICAS COMERCIALES, POR MEDIDAS 
 
Reglamentos técnicos y normas  Question 1  
¿Cuáles son los principales sectores en los que la UE ha alineado sus normas y reglamentos técnicos con estándares internacionales? 
 
Answer 
Generally speaking, in the case of standards, the stakeholders themselves determine which standards 
are needed at the International and European levels.  
There are some sectors where the European sta keholders have chosen to contribute to the 
development of nearly only EN ISO standards (equi pment for the petroleum industry, 95% of CEN 
standards is identical to international ISO st andards), or a combination of European and 
international standards (i.e. healthcare, 75% of Eu ropean standards identical to international ISO 
standards, or electro-technical, 68% of European sta ndards identical to international IEC standards).  
(data provided by CEN-CENELEC related to the first quarter 2011) 
 As regard technical regulations, the EU is co mmitted to specifying whenever possible, product 
requirements in terms of performance rather than design or descriptive characteristics in accordance WT/TPR/M/248/Add.1 
Page 373 
 
 
  with Article 2.8 of the TBT Agreement and to base them on any relevant international standard as 
required by Article 2.4 of the TBT Agreement.  Question 2 
 Párrafo 73: ¿Poderla brindar mayor información s obre la legislación de "armonización plena"? ¿Esta 
legislación es dinámica? Es decir, ¿Se puede incluir mayor número de mercancías periódicamente? 
 
Answer 
As mentioned in para. 85 (p. 51) of Chapter III of  the Report by the Secretariat, the requirements 
relating to technical regulations and conformity assessment proce dures harmonized at EU level are 
listed by sector in the Export Helpdesk website of the Commission.59  In addition, an overview of EU 
legislation relating to various industrial produc t areas is available on the website of the 
Commission's Directorate-Genera l for Enterprise and Industry.60 
For an overview of the legislati ve initiatives scheduled for adoption at EU level for 2011 and those 
planned for the period 2012-2014, please refer to the Commission Work Programme 2011 and its 
Annexes, available at: http://ec.eur opa.eu/atwork/programmes/index_en.htm. 
Question 3  
Párrafo 80: ¿Cuáles son los criterios utilizados por la UE para determinar la ne cesidad de elaborar un 
reglamento técnico o norma? ¿Se tiene procedimient os comunes en los países miembros de la UE? 
¿La UE lleva a cabo exámenes ex - ante y/o ex - post?  Answer 
EU harmonizing legislation is developed when neces sary for the establishment and functioning of the 
internal market. In the non-harmonized area, Memb er States continue to legislate and the free 
movement of goods is guaranteed by the application of the general provisions of the Treaty on the Functioning of the European Union and the operation of the mutual recognition principle as defined 
in the case-law of the Court of Ju stice of the European Union.  
As mentioned in para. 84 (p. 51) of the Report by th e Secretariat, EU legislation has to comply with 
the Better Regulation principles. Better Regulati on aims at simplifying and improving existing 
regulation, better designing new regulation and rei nforcing the respect and the effectiveness of the 
rules, in line with the proportionality principle en shrined in Article 5 of the Treaty on European 
Union and its Protocol 2 on the application of the pr inciples of subsidiarity and proportionality. Most 
EU Member States have integrated the Better Regulation principles in their national reform 
programmes and put in place an institutional structure to support this strategy (see more at: 
http://ec.europa.eu/governance/be tter_regulation/ms_action_en.htm). 
According to the Better Regulation policy,  impact assessments are prepared for: 
 legislative proposals  which have significant  economic, social and environmental impacts;  
 non-legislative initiatives which define future policies;   
 certain implementing measures adopted by the Commission on the basis of implementing 
powers conferred by means of an EU act which are likely to have significant impacts.  
 
For an overview of the legislati ve initiatives scheduled for adoption at EU level for 2011 and those 
planned for the period 2012-2014 that will under go impact assessment,  please refer to the 
                                                      
59 Export Helpdesk online information.  Viewed at:  http://exporthelp.europa.eu/index_en.html. 
60 See, for example:  http://ec.europa .eu/enterprise/sectors/index_en.htm. WT/TPR/M/248/Add.1 
Page 374  
 
 Commission Work Programme 2011 and its Annexes, available at: 
http://ec.europa.eu/atwork/progr ammes/index_en.htm.  Further details about the planned impact 
assessment work are given in Roadmaps that are regularly updated an d are available on the 
Commission's thematic website on impact assessment , to which general reference is made for 
additional information: http://ec.eu ropa.eu/governance/impact/index_en.htm. 
The simplification of the existing body of EU legi slation is an important component of the Better 
Regulation agenda.  To that effect, EU legisla tion is continually reviewed for the purposes of 
assessing  its continued relevance, the need for any am endments and updating to technical progress, 
and the potential for simplification through technique s such as codification and recasting (consisting 
of amendment + codification).  To that effect, EU legislation typically contains a review clause 
requiring the Commission to prepare, at regular intervals (usually, 5 years), a report on the 
application of the directive or regulation incl uding, where appropriate, proposals for amendment. 
The recent Commission Communication on Smart Regulation in the European Union
61, dated 
8 October 2010 proposes further improvements and e nhancements to the Better Regulation policy.  
The Commission underlines the importance of consideri ng the impact of legislation throughout the 
whole regulatory policy cycle, as well as the n eed to evaluate existing legislation and assess the 
benefits and costs of legislation as  actually applied.  Further to this Communication, the Commission 
has launched so-called "fitness checks" to verify whether existing regulations are actually serving 
their intended purposes, and, if not, whether amendments  needed to be proposed.  This will add to the 
existing initiatives in the field of simplification of legislation and reduction of  administrative burdens 
associated with compliance   
Question 4  
Cuadro III.8: ¿Cómo evitan la duplicación de esfue rzos en la elaboración de normas y RT de la 
legislación UE y ia que emiten los estados miembros? 
 
Answer 
EU Member States are sovereign States having the comp etence to legislate in the area of goods, 
unless harmonized legislation has been adopted at EU level.  Member States have therefore national 
technical regulations and conformity assessment pr ocedures in place and are allowed to adopt new 
ones when the relevant aspects are not fully harmoni zed at EU level.  In case differences in justified 
requirements of Member States impede the functioni ng of the internal market, the EU would assess if 
the requirements would need to be harmonized and if EU legislation needs to be adopted.  In case EU 
legislation fully harmonizes requirements for spec ific products, Member States are not allowed to 
maintain or to adopt national legislation for th e same requirements.  The EU possesses an internal 
notification system that contributes to ensuring t hat Member States' technical regulations and 
conformity assessment procedures are in complian ce with the Treaty on the Functioning of the 
European Union and EU harmonized legislation.  
 
Question 5  
Párrafo 82: ¿Tiene la UE un catálogo de Reglamen tos Técnicos con un mecanismo de búsqueda? En 
caso la respuesta sea no, ¿Tiene pl aneado implementar uno en el futuro? 
 
Answer 
Please refer to the reply to Question 2. 
 
                                                      
61 http://ec.europa.eu/governance/better_regulation/index_en.htm WT/TPR/M/248/Add.1 
Page 375 
 
 
  Question 6 
Párrafo 83: ¿Posee la UE un mecanismo pa га la publicación de respuestas a los comentarios recibidos 
de los miembros de la CMC a los proyectos de regl amentos técnicos o procedimientos de evaluación 
de la conformidad?  Answer 
All answers given to written comments from WTO Me mbers as sent to the EU TBT Enquiry Point are 
available on the European Commission's TBT dat abase (http://ec.europa.eu/enterprise/tbt/). 
 Question 7  
Párrafo 84: ¿Cómo determina la UE el impact o de cada reglamento? Mencionan que "todas las 
iniciativas de política y propuestas legislativas "i mportantes" que puedan tener repercusiones 
significativas a nivel económico, social y ambiental deben ser objeto de evaluación de impacto", ¿Cómo determinan esa "importancia"?  Answer 
Please refer to the reply to Question 3.  Question 8  
Párrafo 86: ¿Se tiene planeado modificar ios RT  adoptados antes de la introducción dei nuevo 
enfoque, de manera que todos los RT tengan solamente requisitos esenciales de rendimiento? 
 Answer 
Technical harmonization according to the Ne w Approach has been a success.  Decision No 
768/2008/EC builds on the 20-year experience of the New Approach and lays down common principles and reference provisions for the futu re development of (or amendment of existing) 
harmonizing legislation.  It is indeed expected that, thanks to Decision 768/2008, the New Approach 
technique will spread to new sectors, and that existing legislation, where appropriate, will be 
amended to conform with the prov isions of Decision 768/2008.  However, it is also acknowledged that 
the specificities of sectoral needs may provide fo r recourse to other regulatory solutions.  In 
particular, that is the case where there are specific, comprehensive legal systems already in place in a 
sector (e.g. in the field of feed and food, cosmetics,  medicinal products, chemicals, motor vehicles) or 
where sectoral needs require specific adaptations of  the common principles and reference provisions 
(e.g. in the fields of medical devices, construction products and marine equipment).  It will be up to 
the EU legislator to justify, on a case-by-case basis , the need for departing, totally or partially from 
the common framework provided by Decision 768/2008.  
Question 9  
 ¿Cómo son tomados en cuenta los intereses extran jeros en la adopción de normas nuevas o revisadas 
de proyectos de ley publicados en la UE?   
 
Answer 
All European standards, harmonized or not, are d eveloped accordingly to the WTO TBT Code of 
Good Practice principles of openness, transparency, non-discrimination etc.  Moreover the European 
standardization work programme is open and freely accessible on the CEN, CENELEC and ETSI websites.  As European standardisation is based on the natio nal delegation principles (like ISO and IEC), the 
WTO members' stakeholders who have a represen tative office in an EU member country can 
participate to the full standardization process thr ough the national standards body in that country; 
 The WTO members' stakeholders can also give comme nts, from wherever in the world, on draft 
European standards during the public enquiry that the national standards bodies organize.  The most WT/TPR/M/248/Add.1 
Page 376  
 
 advanced ones even have dedicated websites where th e draft standards are accessible for free.  All 
comments will be taken into due consideration, bu t it is up to the Technical Committee to decide 
which comments to take on board due to their technica l content.  Finally, traceability of comments on 
European and national level has to be ensured.  
As regards legislative proposals for technical regul ations and conformity assessment procedures, any 
person, regardless of her nationality or location, c an contribute comments to the public consultations 
carried out as part of the regulatory impact assessme nt.  All public consultations are accessible on-
line through a dedicated single portal "Your Vo ice in Europe":  http://ec.europa.eu/y 
ourvoice/index_en.htm.  
See also the reply given to Q7 from Brazil. 
 Question 10 
¿Cuál es el enfoque usado por la UE para el asegur amiento de que los resultados de evaluación de la 
conformidad estén de acuerdo a reglamentos técnicos? ¿Esta supervisión se realiza en aduanas o en el 
mercado interno? 
 
Answer 
EU Member Status are responsible for market su rveillance, i.e. all those activities and measures 
taken by public authorities to ensure that produc ts comply with the requirements set out in the 
relevant EU harmonization legislation and do not e ndanger health, safety or any other aspect of 
public interest protection.  Market surveillance is  carried both with respect to products already 
placed on the market as well as at the EU external  border, before imported products are released for 
free circulation.  Regulation (EC) No. 765/ 2008 setting out common principles for market 
surveillance aims to strengthen market surveillance throughout the EU by providing for general 
requirements for market surveillance applicable to all Member States (e.g. minimum organisational 
and infrastructure requirements, obligation to p repare national market surveillance programmes and 
to perform appropriate checks on an adequate sca le, reinforced cooperation and information 
exchange between national market surveillance authorities).  Question 11  
¿Todos los organismos de reglamentación de  ¡os estados y territorios,  cumplen  
las obligaciones del Acuerdo OTC de la OMC, incluyendo la obligación de notificación? 
 
Answer 
All EU Member States are full Members of the WT O in their own individual capacity and therefore 
subject to the obligations of the TBT Agreement, in cluding the notification obligation.  Member States 
operate their own national notification and enquiry poi nts and notify their technical regulations and 
conformity assessment procedures when they consider that they meet the criteria of Articles 2.9 and 
5.6 of the TBT Agreement.  Question 12 
¿En cuáles de ios Acuerdos comerciales bilateral es de la UE existen provisiones  relativas a OTC? 
¿Cuáles son las características principales de dichos acuerdos y sus aportes con respecto s los 
derechos y obligaciones existentes en el Acuerdo OTC de la OMC?  
Answer 
Most bilateral agreements negotiated between th e EU and third countries contain a specific TBT 
Chapter or explicit reference to TBT principles. A lthough the content of the TBT chapter may vary 
from agreement to agreement, provisions aiming at improving the implementation of the TBT 
Agreement, at reinforcing bilateral regulatory cooperation and at increasing transparency in the 
elaboration and application of technical regulati ons and standards are a common denominator.  The 
agreements concluded recently with South Korea, Ce ntral America countries and Andean Community WT/TPR/M/248/Add.1 
Page 377 
 
 
  countries contain comprehensive TBT chapters that go beyond WTO TBT Agreement obligations.  The 
same holds for the agreements being negotiated wi th Ukraine, Canada, India, Malaysia, Singapore 
and MERCOSUR.  Some agreements include specific annexes aiming at tackling Non-tariff barriers to trade on given industrial sectors.  For inst ance, the FTA Agreement with South-Korea contains 
specific provisions on motor vehicles and vehicle parts, chemicals, pharmaceuticals, medical devices 
and electronic products.  
 Question 13  
¿Tiene pensado la UE realizar al gún tipo de inventario con el fin de eliminar aquellos reglamentos 
que hayan quedado obsolet os con el tiempo? 
 
Answer 
As indicated in the reply to Q 3, as part of its Better Regulation agenda the Commission has launched 
a major simplification initiative aiming, inter alia, at repealing obsolete legislation. For more details, 
please see:  http://ec.europa.eu/governan ce/better_regulation/simplification_en.htm. 
 
PERU II 
 
PRINCIPALES ACONTECIMIENTOS REGISTRADOS EN LA POLÍTICA COMERCIAL 
DE LA UE  
3.6.1 Comercio y desarrollo sostenible 
Question 14  
En e! párrafo 108 se señala que para realizar la s evaluaciones del impacto sobre la sostenibilidad 
(EIS) de los acuerdos comerciales de la UE se  celebran amplias consultas con los colectivos 
interesados, tales como asociaciones del sector priv ado, sindicatos, ONG y la sociedad civil en 
general. ¿Puede la unión europea explicar qué entie nde por "sociedad civil en general" y en qué se 
distingue de la "sociedad en  general"? ¿Quiénes forman parte de la sociedad civil? 
 
Answer 
The understanding of the expression "civil society" in the EU is substantially similar to the 
understanding of the same term in P eru.  It is commonly used in political and legal texts in relation to 
the openness, transparency and accountability of public institutions.  For instance, Article 11.2 of the 
Treaty on the European Union states that "the ins titutions shall maintain an open, transparent and 
regular dialogue with representative associations a nd civil society".  Similarly, President Ollanta 
Humala after his election in June announced "a Government of national consensus, representative of 
democratic forces and open to civil society".  
Business associations, trade unions and NGOs a re among the organisations that are covered by the 
term "civil society".  Question 15 
Dado que se está elaborando  en el Perú un Reglam ento sobre Rotulado de Alimentos que contienen 
organismos genéticamente modifica dos, puede la UE brindar inform ación sobre la aplicación de su 
Reglamento 1829/2003 sobre Alimentos y Pienso s modificados genéticamente, y sus normas 
modificatorias y complementarias. Específicamente interesa conocer lo siguiente:  
a) ¿Cuáles son los problemas más frecuentes en la aplicación de dicho Reglamento? 
b) ¿Existen zonas grises donde la aplicación del Reglamento haya recibido cuestionamientos? 
c) ¿Cuáles son los métodos de ensayos usados por las autoridades europeas para detectar 
presencia o ausencia de organismos genéticam ente modificados en alimentos y piensos? 
d) ¿Cuáles son sus recomendaciones para el diseño de una política general sobre organismos 
genéticamente modificados y su uso en alimentos? WT/TPR/M/248/Add.1 
Page 378  
 
 Answer 
The EU legislative framework on GMOs is currently subject to 2 evaluations: 
- Evaluation of the EU legislative framework on GM food and feed. - Evaluation of the EU legislative Framework in  the Field of Cultivation of GMOs under Directive 
2001/18/EC and Regulation(EC) No 1829/2003 and marketing of their other uses under Directive 
2001/18/EC. 
The terms of reference as well as information already collected in the framework of these two 
evaluations are published on the website of the European Commission (http://ec.europa.eu/food/food/biotechnology/index_en.htm). The final reports of these two evaluations a re due to be published soon and will provide 
comprehensive answers to questions a, b, and d. 
With respect to question c, the validation of a t esting method is a part of the EU authorisation 
procedure.  As a result, the EU register on GM food and feed (http://ec.europa.eu 
/food/dyna/gm_register/index_en.cfm) includes fo r each authorized product a description of the 
method of detection as well as where reference mat erial is available.  More information on the 
validated detection methods is available on the we bsite of the EU Reference laboratory for GM food 
and feed (http://gmo-crl.jrc.ec. europa.eu/statusofdoss.htm). 
 Question 16 
Asimismo, se agradecerá información que pudiera brindar la UE sobre sus normas reglamentarias 
sobre comercio electrónico y específicamente firm a electrónica avanzada y atender las siguientes 
consultas específicas: 
 
a) ¿En qué medida  se encuentra regulado el co mercio electrónico desde y hace los países 
miembros de la UE? 
b) ¿Disponen de estadísticas sobre los sectores de la actividad económica que usan firma 
electrónica avanzada y qué perspectivas existen sobre la intensificación del uso de dicha 
tecnología? 
c) ¿Cuáles son los problemas más frecuentes en la aplicación de las normas europeas sobre 
firma electrónica avanzada? 
d) ¿Podría la UE hacer llegar información referi da a   jurisprudencia europea sobre litigios 
donde se haya involucrado a la firma electrónica avanzada? 
 
Answer 
a) The central piece of legislation regulati ng e-commerce within the European Union is 
Directive 2000/31/EC (E-commerce Directive).  It contains provisions on issues such as the cross-border provision of information society services,  prior authorisation requirements, (unsolicited) 
commercial communications, online contracting and the liability of inter intermediaries.  A 
communication which will include an application report of this Directive will be adopted in 
September 2011). For further information, plea se see:  http://ec.europa.eu/internal_market/e-
commerce/directive_en.htm b) This statistical information would require further studies and is not currently available. 
c) This information would require further studies and is not currently available. 
d) For any case law, please see: http://cur ia.europa.eu/jurisp/cgi-b in/form.pl?lang=en. 
 PERU III 
 Medidas Sanitarias y Fitosanitarias (Novel Foods) 
Question 17 
Perú muestra preocupación respecto al Reglamento  Nº 258/97 del Parlamento Europeo y del Consejo, 
el cual se encontraba en proceso de revisión y que lamentablemente no llegó a culminarse con una modificación en su contenido, el mismo que hast a la fecha continúa restringiendo el ingreso al WT/TPR/M/248/Add.1 
Page 379 
 
 
  mercado europeo de algunos alimentos e ingredient es alimentarios (a los que califica como "novel 
foods") no comercializados en la Unión Europea antes del 15 de mayo de 1997.  
La preocupación del Perú radica en que la ap licación del Reglamento sobre "Novel Foods" viene 
afectando directamente el comercio de los produc tos de uso tradicional derivados de nuestra 
biodiversidad, impidiendo su ingreso al mercado de la Unión Europea.  Productos peruanos con alto 
potencial como camu, yacón, sacha inchi, arazá,  y otras frutas amazónicas y sus derivados, se 
consumen en el mercado local e ingresan a importa ntes mercados como Japón y Estados Unidos, pero 
tienen cerradas las puertas del mercado europeo. 
Answer 
The EU notes that the final negotiation on the Novel Food revision failed in March 2011 on the issue 
of animal cloning for food production.  It should be noted that there was an agreement on a simplified 
procedure for the placing on the EU market of tr aditional foods from third countries but it has not 
been adopted as well as the other parts of the text.  The EU is now examining the next steps both with respect to the Novel Food Regulation and the follo w up to the Commission's report on cloning in food 
production, in order to benefit from the huge work already done. 
The EU has continuously kept third countries info rmed on the progress of the novel food negotiation 
and on future measures applicable to traditional foods from third countries.  As mentioned above, the 
EU is now examining the next steps both with resp ect to the Novel Food Regulation and the follow up 
to the Commission's report on cloning in food production.  Régimen de Precios de Entrada aplicados por la Unión Europea (Pag. 38) 
Question 18 
Este es un mecanismo que restringe el acceso de  las exportaciones de una serie de productos 
agropecuarios frescos (frutas y hortalizas) cuando los precios con los que ingresan al mercado 
europeo se ubican por debajo de un nivel previament e especificado en la norma que lo regula, de 
manera que se aplica un derecho arancelario específi co estacional que se incrementa en la medida que 
los precios de entrada de los productos agropecu arios se reducen; es decir se castiga al exportador 
eficiente.  
La consulta es, si la Unión Europea tiene algún co mpromiso asumido en el marco de la Ronda de 
Uruguay del GATT, para desm antelar este mecanismo en algún momento del tiempo.  
Answer 
The entry price system was accepted as part of  the Uruguay Round agreement and is bound with no 
commitment or obligation to remo ve it at any moment in time. 
 PERU IV 
 Question  
¿Cómo se determina qué Estado Miembro tiene conocimiento más exacto de las actividades 
aduaneras del Estado solicitante para la obtención de la cond ición de operador autorizado? 
Answer 
The EU customs legislation has very detailed rules that determine to which customs authority an 
economic operator should apply for AEO status.  The main rule is that the application should be 
submitted to the customs authority of the EU Member State where the applicant's main accounts 
related to the customs arrangements involved are held, and where at least part of the operations to be 
covered by the AEO certificate are conducted.  This ensures that the application is submitted to the 
customs authority of the Member State which has the most accurate information about the applicant. WT/TPR/M/248/Add.1 
Page 380  
 
 In addition, the EU customs legislation lays dow n rules about informing and consulting other EU 
Member States.  Within 5 days after accepting the app lication, it must be uploaded in a dedicated IT 
system by the competent EU Member State, enabl ing the other EU Member States to provide the 
issuing Member State with information they hold a bout the applicant.  In case the issuing Member 
State requires the help of an another EU Member St ate to examine the AEO criteria, it must consult 
the other EU Member State.  The legislation sti pulates all the cases where obligatory consultation is 
necessary (i.e premises in other MS etc.).  Th ere is also a special procedure in the cases of 
multinational companies with a parent company bei ng the legal entity and a number of branches in 
more than one MS. 
 
Question  
¿La resoluciones anticipadas en materia de origen son exigibles a las administraciones 
aduaneras fuera de la UE? 
Answer 
According to Article 2 (h) and point 3 (d) of A nnex II of the WTO Agreement on Rules of Origin, 
Members shall ensure that upon the request of an ex porter, importer or any person with a justifiable 
cause, assessments of the origin they would accord  to a good are issued as soon as possible but no 
later than 150 days after a request for such an asses sment provided that all necessary elements have 
been submitted.  
 An advance ruling on origin issued by an EU customs authority is binding on all customs 
administrations th roughout the EU. 
It is not binding on customs administrations outside of the EU.  
TRINIDAD AND TOBAGO 
 
III. TRADE POLICIES AND PRACTICES BY MEASURE (1) 
MEASURES DIRECTLY AFFECTING IMPORTS  
 
Contingency measures   
Anti-dumping and countervailing duties 
 
Question 1 
Trinidad and Tobago noted that the adoption of AD and CV Measures is subjected to the new 
comitology rules.  Can the European Union provide answers to the following questions with respect to 
the adoption of the new rules?   a) What was the procedure for the adoption of AD & CV measures prior to the new comitology 
rules?  
b) What were some of the concerns/issues that requi red this change to the past rules/procedures for 
the adoption of AD and CV Measures?  
 
Answer 
Prior to Regulation (EU) No 182/2011 laying dow n the rules and general principles concerning 
mechanisms for control by Member States of the Commission's exercise of implementing powers ("the 
Comitology Regulation"), the Council had the po wer to adopt implementing acts (such as the 
adoption of definitive AD and CV measures).  The Co mitology Regulation has shifted the power for 
adopting implementing acts (such as the adoption of definitive AD and CV measures) from the 
Council to the European Commission.  However, the Comitology Regulation foresees that the Commission's exercise of implementing powers will be subject to control by the Member States WT/TPR/M/248/Add.1 
Page 381 
 
 
  through its Article 8 for provisional measures and through the examination procedure for definitive 
measures.  Until the basic anti-dumping and anti-subsidy Regulati ons are aligned to the Comitology Regulation, 
the Council will continue to have the power to adopt  definitive AD and CV measures.  In order to 
align the basic anti-dumping and anti-subsidy Regul ations to the Comitology Regulation, the 
Commission has made a proposal to the European Parliament and Council (the co-legislators) on 
7 March 2011 for a Regulation amending certain re gulations relating to the common commercial 
policy as regards the procedures for the adoptio n of certain measures (COM(2011) 82 final of 
7.3.2011, 2011/0039 (COD)) ('the Omnibus proposal').  The discussions within  the co-legislators are 
still at an early phase and therefore it is not yet cl ear when the Omnibus proposal will be adopted. 
 
This change to the procedures for the adoption of  AD & CV measures came about following the entry 
into force of the Treaty of Lisbon which has c hanged the framework for adoption of implementing 
acts.  The provisions of the Treaty on implementi ng acts, which are set out in Article 291, confer 
implementing powers onto the Commission and do not pr ovide any role for the European Parliament 
and the Council to control the Commission's exercise of  implementing powers.  Such control can only 
be exercised by the Member States.  Article 291 of the Treaty also required the adoption of a 
regulation to establish the mechanisms of such contro l.  In order to comply with such a requirement 
the European Parliament and the Council adop ted Regulation (EU) No 182/2011 laying down the 
rules and general principles concerning mechan isms for control by Member States of the 
Commission's exercise of implementing powers ("the Comitology Regulation"). 
 
(3) 
MEASURES AFFECTING PRODUCTION AND TRADE  
(v) Competition Policy 
(a) Legislative Framework  
Question 2  
Can the EU provide Trinidad and Tobago with an  explanation concerning why Competition Policy 
does not apply to agreements and practices in th e insurance and the motor vehicle businesses?   
Answer 
In general, Art 101 TFEU equally applies to th e insurance sector and to the automobile sector. 
However, the prohibition of anticompetitive arra ngements set forth in Article 101(1) TFEU is 
declared inapplicable to certain specific categorie s of agreements between companies.  For the 
insurance sector such block exemption is granted fo r the joint realisation of compilations, tables and 
studies and co-(re)insurance pools.  Such a block exem ption regulation for the insurance sector had 
already been adopted in 1992 and was replaced  in 2003.  A new block exemption regulation 
(Regulation 267/2010) which came into force on 1 April 2010 extends, with some amendments, the 
exemption granted to forms of sp ecific cooperation which the Commission considers indispensable in 
order for the insurance sector to carry out its  business, including certain forms of exchange of 
information between insurers.  Th e motor vehicle block exemption al so provides such a necessary safe 
harbour by exempting a whole category of motor veh icle distribution and repair agreements from the 
prohibition laid down in Article 101(1).  For bot h block exemption regulations, several conditions 
have to be complied with in order to apply the ne w regulation to such agreements, the most important 
being that Agreements can only benefit from the bloc k exemption so long as they do not contain any 
serious restrictions of competition and meet the other conditions laid down by the Regulation. 
 Question 3  
Can the EU please provide information or records of any actions taken by the Commission or any 
other enforcement body against EU States which have  limited their application of Competition Policy 
in the Financial Services Sector?  WT/TPR/M/248/Add.1 
Page 382  
 
 Answer 
The role of EU competition policy in financial services is not limited to enforcement in individual 
cases.  Consistent with the approach set out in the White Paper Financial services policy 2005-2010, 
the Commission seeks to use competition policy pro-acti vely to identify and help tackle barriers in the 
Single Market, in order to deliver the benefits that  this can provide to businesses and consumers.  The 
Commission's sector inquiries into retail banking and bus iness insurance are a central element of this 
new approach to strengthening competition in financial services.  THAILAND 
 
Report by the Secretariat WT/TPR/S/248 
 
IV DEVELOPMENTS IN SELECTED SECTORS 
(2) T RADE IN SERVICES  
(ii) Financial Service 
(a) Banking 
Page 118, Paragraph 54 
According to the Secretariat Report, the EU single passport regime allows banks licensed in any EU 
country to do business in other EU countries without  further approval from the host country, whether 
through branches or cross-border services.  Please pr ovide us further clarifications on the following 
questions. 
 
Single Passport 
 
Question 1 
As the EU has the single passport banking license concept, are licensing rules/conditions of EU 
member States the same?  Are there any additiona l rules/measures, implicitly or explicitly, if 
applicant banks are from non-EU member States? 
 
Answer   
EU legislation provides for minimum standards of  harmonization of banking regulation across the 
EU.  This allows Member States to impose stri cter standards if they wish.  However, once a credit 
institution has obtained a licence from one Member St ate authority that licence is recognised across 
the rest of the EU and the credit institution does not need to apply for any further authorisations in 
order to supply banking services in other Member States.  There are no additional requirements for the establishmen t of third-country banks' subsidiaries.  The 
requirements for the establishment of third-country branches are regulated at  Member States' level. 
 
Question 2 
Are EU/non-EU banks able to apply for banking licen se in EU member States at any time the banks 
deem appropriate, or the host authorities specify an applicable timeline? 
 
Answer   
Yes.  There is no specific timeline.   
 
Question 3 
How many licenses are required for a bank to  fully operate banking business in the EU? 
 WT/TPR/M/248/Add.1 
Page 383 
 
 
  Answer   
See also response to question 1.  Once a credit in stitution authorized to supply banking services in 
one Member State it is allowed to supply services cross-border to the entire EU.  For third countries 
this means that if a credit institution is licensed as a subsidiary (which is subject to supervision and 
capital requirements) in one Member State it can provide banking services throughout the EU.  This 
is not true for branches from third countries, wh ich are subject to Member States' authorization 
requirements.   
 
Question 4 
Can an EU bank operate its busin ess through a subsidiary?  If so, what is the difference between 
branch and subsidiary in terms of business scope? 
 
Answer   
Yes.  No difference in business scope.  
 
Question 5 
Does the EU include an economic needs test as one of the factors to deci de whether new banking 
licenses should be granted?  If so, how does the EU define which measure is considered an economic 
needs test? 
 
Answer   
No. 
 
Others 
 
Question 6 
Is there any foreign ownership restriction, such as shareholding limitation, placed on credit 
institutions from EU and non-EU member States? 
 
Answer   
Not in the EU law.  
 
Question 7 
Is there a residency requirement for a person worki ng in a bank branch in other EU member States? 
Could the EU indicate how residency is defined in this regard? 
 
Answer   
Not in EU law.  As explained in answer 1, branches are regulated at Member States' level. 
 
Question 8 
After the global financial crisis, are there any chan ges in the crisis management mechanism for both 
EU and non-EU banks?  How do you treat a branch differently from a subsidiary? 
 Answer   
The Commission will issue a legislative proposal on crisis management and bank resolution after the 
summer.  Only subsidiaries will be subject to the bank resolution regime as branches are already 
dealt with in the winding up Directive.  
 WT/TPR/M/248/Add.1 
Page 384  
 
 SWITZERLAND 
 
Report by the Secretariat 
II. TRADE POLICY REGIME 
(5) I NVESTMENT AGREEMENTS AND ARRANGEMENTS  
Question 1. 
Para. 44  states that under the draft Regulation, Member States are authorized to maintain in force 
BITs that they notify to the Commission.  The Co mmission may withdraw authorization for BITs that: 
conflict with EU law; overlap with an existing ag reement between the EU and a third country, and the 
overlap is not addressed in the agreement with th e EU;  or undermines EU investment policy.  What 
concretely is the "overlap" of a BIT with "an exis ting agreement between the EU and a third country" 
which the EU has in mind and which may result in th e withdrawal of an authorization of a BIT? In 
what cases could a BIT "undermine EU investment policy'? 
 
Answer   
The proposed Regulation establishing transitional a rrangements for bilateral investment agreements 
between Member States and third countries (mentioned in para. 45) contains provisions to regulate 
the effects under the European law of the ne w division on competence between the EU and its 
Member States with regards to their BITs and the relation of those agreements with the future 
comprehensive European inter national investment policy.  
This future Regulation will establish the conditi ons and the procedure under which Member States 
would be empowered to negotiate new bilateral in vestment agreements or re-negotiate existing ones. 
Since the proposed Regulation is still under discu ssion between relevant EU institutions, no further 
information is available at this stage.   Question 2 
Para. 47 :  The EU states its interest in covering bo th investment protection and liberalization of 
investment in its on-going FTA negotiations, includ ing with Canada, India and Singapore.  Apart 
from covering the entire "life cycle "of investments in one single legal text, are there other reasons 
that make the EU believe that rules on protection a nd liberalization of investment should be treated in 
one legal instrument?  If yes, what reasons? 
 
Answer   
Investment is an important driver of growth and a key element of the EU trade policy.  It is not a new 
area to the EU: negotiations for Free Trade Ag reements already include a market access agenda on 
investments.  But the recent developments launched by the entry into force of the treaty of Lisbon 
enhance the EU's ability to implement a comprehensi ve policy and to speak and act in the area of 
investment, including in the area of investment protec tion, which has been so far pursued by Member 
States individually.  Therefore, it has a strong po tential to strengthen investment competitiveness and 
to allow better address of the n eeds of all investors, who stri ve for a more integrated, open, 
transparent and predictable investment environment.  
 Question 3 
Para. 47 :  What are the reasons why the EU seems to prefer comprehensive stand-alone investment 
agreements for the EU with China and Russi a instead of embedding them into an FTA? 
 
Answer 
The paragraph mentioned does not have the content imp lied in the text of the question.  It only says 
that in the short to medium-term, the circums tances under which it may be desirable to pursue 
comprehensive, stand-alone investment agreements w ill be further explored.  This does not imply a 
preference for such an option, it is merely a reflect ion of the reality that in some cases the solution WT/TPR/M/248/Add.1 
Page 385 
 
 
  currently envisaged for Canada, India, Singapore –investment protection becoming a part of  on-
going and more comprehensive trade negotiations, might  not be feasible (e.g. because prospects for 
such comprehensive negotiations do  not exist at this stage). 
III. TRADE POLICIES AND PRACTICES BY MEASURES  
(1) M EASURES DIRECTLY AFFECTING IMPORTS  
(i) Customs procedures 
 
Question 4 
In para. 1 and 4 :  the Secretariat's report notes that, pursu ant to the modernization of the Customs 
Code and as foreseen in its implementing provisio ns, customs procedures in-between the Member 
states of the EU are harmonized and controlled at the level of the EU.  However, concerns are 
repeatedly expressed in this forum about local pr actices and IT procedures, that significantly vary 
from one Member state to the other.  The lack of interoperability between the national customs 
systems and the heterogeneity of customs procedur es throughout the EU lead to trade impediments 
and constitute non-tariff barriers.  We kindly ask  the EU to elaborate on actual measures and 
strategies implemented to align disparate pr actices for the purpose of trade facilitation. 
 
Answer 
The EU customs procedures are fully harmonized  and the EU monitors the application of the 
procedures as well as the own resources.  Wher ever interoperability is appropriate, the EU makes 
sure there is one.  The Moderni zed Customs Code and its Implemen ting provisions currently being 
drafted, address the interoperability of national custom s IT-systems in order to provide for a seamless 
flow of data.  The Electronic Customs Decision refers to interopera bility and can be found under the following link: 
http://ec.europa.eu/taxation_customs/customs/po licy_issues/electronic_cust oms_initiative/electronic_
customs_legislation/index_en.htm#decision. 
 
Question 5 
Para. 1-13 :  Could the EU explain what are the modaliti es and the scope foreseen in the fields of 
customs cooperation and assistance with third countries? 
 
Answer  
The EU has concluded agreements with a number of  third countries contai ning provisions on both 
customs cooperation and on mutual administrative as sistance in customs matte rs, which are currently 
in force with 58 third countries, as ma y be seen from the Commission's website 
(http://ec.europa.eu/dgs/olaf/assist_3rd/index_en.htm l).  Contrary to the situation with respect to 
"customs cooperation", where areas of cooperation may vary from one  EU Agreement to another (e.g. 
cooperation on transit with neighbouring countries) , and which may contain unilateral commitments 
(e.g. on alignment of legislation by potential c andidate countries, technical assistance by the EU), 
customs mutual administrative assistance provis ions are largely standard between all agreements 
and, by definition, always reciprocal in nature.  They  provide a legal basis - without which the EU's 
Customs Code otherwise prohibits the transmission of confidential information to third countries -  for 
requesting and providing assistance with the investi gation of customs irregularities, including visits 
by one party to the territory of the oth er in the context of such enquiries. 
 
Question 6 
Para. 12 :  Do advance rulings foreseen by the Customs legislation apply only to  tariff classification 
and origin matters or also to other areas such as customs evaluation, fees and charges and border-
crossing or ports of entry requirements? 
 WT/TPR/M/248/Add.1 
Page 386  
 
 Answer  
Yes, the advance ruling foreseen by the Customs legi slation applies only to tariff classification and 
origin matters.  Currently, there are no plans to  introduce advance ruli ngs in other areas. 
 
(iii) Rules of origin 
Question 7 
Para. 19 of the Secretariat's report indicates that the European Parliament has adopted in October 
2010 a law proposal that would establish an obligation to indicate the country of origin on certain goods produced outside the EU.  What are the ne xt steps foreseen for this project?  The TBT 
Agreement states that labelling requirements be no more trade restrictive than necessary to fulfil a 
legitimate objective.  Could the EU provide more in formation on the legitimate objective it is trying to 
pursue with this law proposal? 
 
Answer   
The Commission put forward its proposal for a regula tion on the indication of the country of origin 
on 16 December 2005.  Following the entry into force of the Lisbon Treaty, the European Parliament 
became co-legislator on this proposal, which is to  be adopted according to the ordinary legislative 
procedure.  Following the adoption of the Resolution of the European Parliament in October 2010, the discussions are going on in the Council, who is not  legally constrained by  any time-limit at this 
stage of the procedure. The main objective of this proposal is to provide information to the consumer as to the origin of 
certain goods and thereby allow consumers to make informed purchase choices.  
(iv) Contingency measures  
Question  8 
In para. 49  the Secretariat's report notes that the EU considers that the defence of EU production 
against distortions of world trade should be cons idered as a necessary component of an open and 
equitable trade strategy.  Also, based upon para. 56 , no less than 125 antidumping measures were 
simultaneously in place in the EU at the end of 2010.  These measures appear also to be highly 
concentrated in certain sectors, notably chemicals,  iron and steel.  Could the European Union explain 
how it reconciles the need for structural adjustment in  such industries which, at least in the past, faced 
a a serious lack of competitiveness, with the ofte n high degree of additional protection provided by 
trade remedies?  Also, how can the European Union reconcile the needs of a better integration in the 
world economy of companies part of global supply chains when their competitiveness is hampered by the high cost of inputs resulting from the pervasive use of trade remedies on certain types of imported semi-finished products ?  
 
Answer 
The EU applies the trade defense instruments (an ti-dumping, anti-subsidies) in order to address 
unfair trading practices, fully in line with the relev ant WTO Agreements.  The EU is a prudent user of 
these instruments and in this context it should be recalled that the EU applies the lesser duty rule which is designed to impose measures only at a l evel which eliminates the in jury caused by either 
dumped or subsidized.  Ensuring a steady supply of ra w materials is also a priority in the European 
Union's trade  policy and in this context attention is draw n to the European Union's interest test (e.g. 
determination of impact of such measures on downs tream users of the product) which is applied when 
deciding whether or not any TDI measures should be imposed. 
Question  9 
In para. 53  the Secretariat's report notes that the European Union does not impose antidumping 
measures to imports from Iceland, Norway and Liec htenstein for the products covered by the EEA. 
From what we know, members of the European Union can also not impose antidumping measures on WT/TPR/M/248/Add.1 
Page 387 
 
 
  companies of other members of the European Uni on if they were to engage in dumping on the 
territory of another member.  Could the European  Union explain why its policy is apparently to 
consider that dumping from companies located w ithin the EEA is harmless while dumping from 
companies located outside the EEA is harmful to the EU domestic production ? 
 
Answer 
The three countries mentioned, i.e. Iceland, Liech tenstein and Norway, under the EEA Agreement are 
obliged to respect and adopt all EU legislation, the "acquis communautaire".  All new relevant Community legislation is dynamic ally incorporated into the Agreement and thus applies throughout 
the EEA, ensuring the homogeneity of the internal market.  This Agreement does not cover fields such 
as agriculture and fisheries, field on which anti-dumping applies. 
Question 10 
Para. 64 s tates that the EU has put in place a surveilla nce measure on steel products of any origin 
since 2002.  This surveillance is a system of auto matic import licensing during a limited period.  As 
this measure has been in place for 9 years and th e world steel industry has recovered more quickly 
(world demand increased by 13% in 2010; world production by 15%, prices exploded) is this surveillance mechanism st ill necessary?  What are the rules defining the length of a limited period? 
 
Answer 
By Regulation (EC) No 76/2002 the Commission in troduced prior Community surveillance of imports 
of certain iron and steel products originating in thir d countries.  This regulation was last extended by 
the Commission Regulation (EU) No 1241/2 009 of 16 December 2009 and shall run until 
31 December 2012.  This steel import licence mechanism  gives an early indication of the steel import 
flows into the EU in the following months.  The licence is free and automatic and does in no way 
constitute a limitation to market acce ss.  This has been confirmed by  the smooth running of the system 
since its start in 2002.  The analysis for the need to continue the system beyond end 2012 has not yet 
been made.  Monthly reports of steel volumes licensed by region of or igin and product group are 
published on the DG Trade website.  
This surveillance mechanism is deem ed to be necessary due to continuous volatility of the global steel 
markets and shifts in steel trade flows in particular in  terms of an economic crises.  While it is true 
that the unprecedented slump of the steel market in 2009 has been somewhat compensated by more 
favourable developments in 2010 and 2011, there are still considerable uncertainties in the market on 
top of some significant trade flow shifts and chang es in the raw material supply.  Developments 
related to the major steel producing counties such as China, Russia, Ukraine and Turkey have 
significant potential in this respect.  Therefore, th e EU does not consider it appropriate to end this 
transparency instrument earlier than anticipated.  There are no specific rules for defining the length 
of the limited period.  
 
(viii) Technical regulations and standards 
Question 11 
Para. 77 :  Could you provide an overview of the pro cedures in place for ensuring due notification of 
measures falling within the scope of the TBT Agr eement adopted by EU Member States?  There are 
indications which lead us to believe that notifi cation requirements are not interpreted in a uniform 
manner across individual EU Member States. 
 
Answer   
The assessment whether a notification of national technical regulations and conformity assessment 
procedure is necessary according to Articles 2.9 and 5.6 of the TBT Agreement rests indeed a priori 
with the Member State concerned.  The individual Member States are also submitting the relevant 
notifications to the WTO Secretariat via their nati onal notification point.  Ho wever, the EU possesses 
an internal notification system for draft national measures that gives the European Commission the WT/TPR/M/248/Add.1 
Page 388  
 
 possibility to be informed about the intention of th e Member State to notify or not a draft technical 
regulation or conformity assessment procedure under the TBT Agreement and to intervene if this is 
considered necessary for the purpo ses of ensuring compliance with the transparency obligations of 
the TBT Agreement.  
 
IV. DEVELOPMENTS IN SELECTED SECTORS 
(1) 
AGRICULTURE  
Question 12 
Para. 21 :  How does the EU assess the future removal of milk quotas against the background of 
volatile prices in the last two years?  Answer  
The expiration date of the milk quotas has been set by the 2003 CAP reform.  Subsequently, in 2008, it 
was decided to gradually increase the level of the quota in order to ensure a soft phasing out of the 
scheme.  As the milk crisis in 2008-09 has show n, the milk quotas are not an effective policy 
instrument as regards the containment of market price volatility.  In view of the end of the quota 
scheme, the Commission has put forward a set of measures aimed at improving the bargaining power 
of milk producers, market transparency and the cont ractual relations along the supply chain. 
Moreover, the issue of how to de al with increased price volatility, wh ich affects the whole agricultural 
sector, will also be addressed in the upcoming post-2013 CAP reform.  
Report by the European Union 
 3.5 Bilateral and Regional Trade Relations 
Question 13 
Para. 92 :  The EU describes that in order to tackle non-tariff obstacles to trade, it included specific 
provisions on electronics, motor vehicles and vehicle parts, pharmaceuticals, medical devices and 
chemicals in its Free Trade Agreement with South Korea.  Does the EU in its free trade agreements 
strive for provisions on non-tariff barriers wh ich go beyond the WTO agreements on TBT and SPS? 
 
Answer   
The 2010 "Trade, Growth and World Affairs" Co mmunication that builds in the previous Global 
Europe Strategy defines as one of its objectives the conclusion of ambitious Free Trade Agreements. 
It mentions also that particular emphasis is pla ced on tackling non-tariff barriers to trade.  Therefore, 
the agreements concluded recently with South Korea, Central America countries and Andean 
Community countries contain comprehensive TBT chapters that go beyond WTO TBT Agreement 
obligations.  The same holds for the agreements being negotiated with Ukraine, Canada, India, 
Malaysia, Singapore and MERCOSUR.  In additi on, some agreements include specific annexes 
aiming at tackling Non-tariff barriers to trade on given industrial sectors.  The FTA Agreement with South-Korea is indeed an example where NTB pr ovisions on motor vehicles and vehicle parts, 
chemicals, pharmaceuticals, medical devices ande lectronic products have been negotiated.  
 UKRAINE 
 WT/TPR/G/248, p. 15  
 
67. The EU has played a leading role in the ag ricultural negotiations throughout the Doha Round 
with the firm belief that further liberalization of  trade in agricultural products is an important 
contribution to sustainable growth of the global economy.  Conditional on meaningful offers by our 
negotiating partners and a balanced outcome in all areas of the negotiations, and hence of a successful 
conclusion of the round, the EU has in particular shown its willingness to make substantial cuts in its WT/TPR/M/248/Add.1 
Page 389 
 
 
  agricultural tariffs based on a tiered formula which w ill cut highest tariffs the most, to significantly 
reduce trade distorting subsidies, and to elimin ate export refunds, on the condition of a successful 
completion of the Doha Round, containing inter alia  the parallel elimination of all forms of export 
subsidies and disciplines on all export measures with equivalent effect.  Furthermore, the EU seeks to 
promote the protection of geographical indicati ons through the establishment of a meaningful 
multilateral register and the extension of additiona l protection of geographical indications for wines 
and spirits to geographical indications for all products. 
 Comment :  At present the EU maintains perhaps the hi ghest tariffs for agricultural goods with the 
strongest level of internal support and export subsid ization.  At that when conducting negotiations on 
bilateral and multilateral levels the EU demands its partners to minimize to the utmost agricultural 
tariffs while the EU market remains protected by tariff quotas and entry prices.  
Question 1 
a) If the EU endeavours to liberalize agricultura l production markets and shows its readiness to 
minimize export subsidies and tariffs, why is it not possible to initiate liberalization on a bilateral 
level?  b) If the EU strains after liberalization, why it ma intains high tariffs for agricultural products and 
uses such non transparent contro l mechanisms as entry prices?  
We urge the EU to further liberalize trade in light of the on-going negotiations and push for an 
ambitious and balanced Doha Round outcome. 
 
Answer 
a) the interplay between the multilateral and bila teral dimensions of the EU trade policy is 
presented in the September 2010 "Trade, Growth and World Affairs" Communication of the European 
Commission. The EU will certainly be pleased to discuss the matter further bilaterally if needed. 
b) the WTO Schedule of the EU features only a limited number of tariff lines with duties which 
can be considered relatively high.  The market access provisions foreseen in the DDA's draft 
modalities for agriculture would have the effect of eliminating tariff peaks.  The EU does not use 
"non-transparent control mechanisms".  The so-calle d entry price system is clearly and specifically 
laid out in the EU schedule. 
 
WT/TPR/G/248, p. 17  Question 2 
74. In particular, the EU has been very activ ely engaging in the TPRB tasks of monitoring 
protectionism.  The EU has been the most tran sparent and cooperative Member by timely reporting 
comprehensive information on its trade practices and measures to the WTO Secretariat. Consequently, 
the WTO TPRB monitoring reports contain substa ntial information on wi de-ranging EU practices, 
illustrating the high level of transparency exerted by  the EU.  In this context, the EU has strongly 
advocated greater transparency, and encouraged other WTO Members to follow the EU example and 
champion in transparency.  Questions 
2a) If the EU is the most tran sparent member of the WTO, why does it still use non transparent 
mechanisms incidental to import?  For instance, such as entering prices.  Moreover, in Annex (p. 147) 
(EUSec.Rep6Annex_g248.doc) in Table (TableAIII.1 Applied preferential tariffs by HS sector, 2011) 
average tariffs applied in preferential trade are show n.  The Note as follows:  Average are based on ad 
valorem duties and ad valorem part of non-ad valorem duties only). 
2b) In this case are the specific duties taken into consideration in such calculations?  Are they 
ignored as well as specific parts of combined duties?  Is the mechanism of entry prices (that is in a 
sense the analogue of specific duty) taken into acc ount when calculating average tariffs?  How they 
were taken into account? WT/TPR/M/248/Add.1 
Page 390  
 
 Answer 
2a) The EU does not use "non-transparent mechani sms".  The so-called entry price system is 
clearly and specifically laid out in the EU schedule. 2b) The calculations referred to by Ukraine were prepared by the WTO Secretariat and not the 
EU.  In this context, Ukraine will note that the calculation of an average duty depends on the 
methodology used to calculate ad valorem equiva lents (AVEs) of non-ad valorem duties. Any 
calculation of AVEs has shortcomi ngs as the result can be influenced  by several elements, including:  
the base period and partners chosen;  commodity prices;   exchange rates;  shocks in specific markets;  
treatment of mixed tariffs and tariff lines for which trade data are not available;  and the extent to 
which preferential trade is included in the unit va lue calculation.  AVEs calculated in the DDA 
context in conformity with the AVEs guidelines of  the Paris-Groser methodology (as agreed by WTO 
Members in 2005) can be consulted on th e WTO Members' website of the WTO. 
 
Comment:  At present the EU has ad-valorem, specific a nd combined duties for agricultural products. 
Usage of specific and combined duties creates non tr ansparent terms of trade.  Not considering these 
rates while calculating an average rate distorts the information, as ad-valorem equivalents of certain 
EU rates actually reach 600%.  Thus average indi cators will be much higher respectively, especially 
for the groups of products 01 -24. 
 
Questions 
In this context Ukraine would like to: 2c) Receive information as to the ad-valorem equi valents of specific rates and specific parts of 
combined rates for all list of the EU products acco rding to the Harmonized System, since the absence 
of such information does not allow to do complete analysis and get the full picture of market access 
situation, in particular for the EU agricultural products. 2d) To seek explanation on  how to find out the real calculations of average rates of import duties 
taking into account specific rates, specific pa rts of combined rates and entry prices.  
 
Answer  
2c and d):  Please see our reply to question 2b.  
 
WT/TPR/S/248  
 
(1) MEASURES DIRECTLY AFFECTING IMPORTS  
Question 3 
115. Certain products of animal origin are subject to "special import conditions", which consist 
mostly of 100% testing of each import consignmen t or pre-export testing and certification.  These 
measures affect nine WTO Members and involve fish ery products, horse and rabbit meat, poultry, eggs 
and egg products, honey, and milk powder (July 2010).62 
Comment:  Ukraine seeks clarification on the EU plans to simplify the existing procedure on the base 
of the WTO practice regarding SPS measures and hope  for fruitful cooperation in the future also 
regarding the on-going FTA negotiations between Ukraine and EU.   
                                                      
62 Albania, Bangladesh, China, Gabon, India, Indonesia, Mexico, Myanmar, and Ukraine.  European 
Commission online information, "Special Import Conditions".  Viewed at:  http://ec.europa.eu/food/animal/ 
bips/special_imports_en.htm. WT/TPR/M/248/Add.1 
Page 391 
 
 
  Answer  
The correct web address is http://ec.europa.e u/food/animal/bips/special_imports_en.htm. 
This page refers to a list of safeguard decisions  in certain cases, e.g. in case of Ukraine for 100 % 
testing of each import consignment of milk powder or  artificial milk replacer made from milk powder, 
for residues, in particular for the presence of cl oramphenicol.  These decisions enforce the necessary 
protective measures to be taken as regards the impor t of certain products from third countries where 
any cause likely to constitute a serious risk to animal  or human health appears or is spreading.  The 
legislation states that it shall be reviewed in th e light of information provided by the competent 
authorities of the relevant third countries, any results from the increased monitoring and testing 
carried out by the EU Member States on consignmen ts arriving at the Community border inspection 
posts and, if necessary, on the basis of the results of a new inspection visit carried out on the spot by 
the experts of the Commission.  The legislation is applied to all third countries in a non-discriminatory 
manner.  In the on-going FTA negotiations there is a coopera tion chapter which aims at providing technical 
assistance programmes in the SPS areas, among other.  (3) 
MEASURES AFFECTING PRODUCTION AND TRADE  
157. State-owned enterprises have exclusive rights in  respect of imports of alcoholic beverages 
(Finland and Sweden), gas (Greece and Luxembourg) , and electricity (Luxembourg).  In 2007, the 
Court of Justice of the EU ruled that Sweden's ba n on imports of alcoholic beverages was a prohibited 
quantitative restriction under EU law, and could not be justified as a means to protect human life and 
health (Box III.2). 
Question 4 
How does the existing practice concerning exclusive rights in respect of imports and import bans 
correspond with Article XVII GATT and Articles I, III GATT.  Answer 
The EU and EU Member States ensure that any enterprise granted exclusive rights in respect of 
imports and/or exports in the Un ion acts in a manner consistent with the principle of non-
discrimination as prescribed in Article XVII of GATT 1994. 
It is worth noting that the EU Treaties themselves (Article 106 of the Treaty on the Functioning of the 
EU) provide that "in the case of public undertakings to which Member States grant special or 
exclusive rights, Member States shall neither enact or  maintain in force any measure contrary to the 
rules contained in the Treaty, in particular those provided for in Article 18 and Articles 101 to 109". 
As a result EU Member States are bound, with respect to  this type of enterprises, to act consistently 
with the principles of non-discrimination and competition.  
IV. DEVELOPMENTS IN SELECTED SECTORS 
(1) A
GRICULTURE  
158. In the 2003 reform of the CAP, the EU introduced the Single Payment Scheme of direct 
payments that, to a large extent, replaced the previo usly existing systems where direct payments were 
linked to animal numbers for beef cattle, sheep, and goats and crop areas for cereals, oilseeds, and 
starch potatoes.  The reforms were extended in subsequent stages to cover sugar, hops, olives, 
tobacco, cotton, fruits and vegetables, and wine.  The 2008 Health Check carried the reforms a stage 
further by ending most of the remaining direct  payments that were linked to production.  
Question 5 
Please provide more information about the releva nt governmental policy regarding agricultural 
support.  What is the share of the direct paymen t decoupled from production in compare to the direct WT/TPR/M/248/Add.1 
Page 392  
 
 payments that were linked to production?  How does the EU classify both types of the direct payments 
in the meaning of the Agreement on Agriculture. 
 
Answer 
The budget for 2011 contains an amount of € 39.8 billion direct aids. Of this amount € 36.3 billion, or 
91%, are decoupled direct aids.  Decoupled payments are classified as measures complying 
with Annex 2 of the Agreement on Agriculture (Gre en Box).  Most remaining coupled direct payments 
are based on fixed area and yield or fixed numbers of animals and are therefore notified as complying 
with Article 6.5 (a) of the Ag reement on Agriculture (Blue Box).  
 159. The EU applies a large number of non- ad valorem  tariffs to agriculture goods, most of which 
are specific duties but others are compound duties (an ad valorem duty plus a specific duty), mixed 
(an ad valorem or a specific duty) or more comp licated forms (such as those in the Meursing Table 
applied to some processed products).  In addition,  particularly for fresh fruits and vegetables, it 
applies seasonal tariffs that vary dependi ng on the date.  The large number of non- ad valorem  tariffs 
for agricultural products accounts for changes in the average tariffs for agricultural products from one 
year to another.  As agricu lture prices vary so does the ad valorem  equivalent.  The average tariff on 
agricultural products was 15.2% in 2011, dow n from18.6% in 2006 (Chapter III(1)(iv)). 
Question 6 
The EU level of tariff protection in  agricultural sector is very high.  Besides wide application of non-  
ad valorem  tariffs to agricultural goods create an additiona l barrier to trade which is inconsistent with 
the WTO norms and principles.  How does the EU pl an to lower the level of tariffs and bring down 
trade barriers in agricultural sphere?  160. The EU notified 114 separate tariff quotas as be ing in operation in the calendar year 2009 and 
marketing year 2008/09.
63  These included several cases where tw o or more quotas covered the same 
or similar products, for example th ere are eight tariff quotas for rice covering paddy rice, broken rice, 
husked rice, and milled rice, including three separ ate quotas for semi-milled and wholly milled rice. 
This is further complicated by the changing num ber, product coverage, a nd quantities of different 
tariff quotas applied by the EU as it took account of the WTO commitments of acceding countries.  In 
addition, some quotas are so small it is hard to c onsider them as commercially meaningful, such as 
quotas for 1,300 tonnes of millet, 4,504 tonnes of chemically pure fructose, or 7 tonnes of rice.  The 
Commission noted that changes to quotas were the result of EU enlargements and subsequent GATT 
Article XXVIII negotiations, and stated that ta riff quotas are market access openings and an 
assessment of them should take this into account. 
Answer 
The WTO Schedule of the EU features only a limited number of tariff lines with duties which can be 
considered relatively high.  The market access provisions foreseen in  the DDA's draft modalities for 
agriculture would have the effect of reducing tariffs .  In any event, non-ad valorem tariffs cannot be 
considered as a barrier to trade; the nature of an impor t duty should not be confused with the level of 
protection it provides.  We would also note that th e EU is the world's largest importer of agricultural 
products.  
 
Question 7 
The EU has a very complicated system of tariff quotas. Beside a large number of tariff quotas, some 
of those are too insignificant to guarantee the minima l market access. In addition the restricted out-of-
quota tariffs in fact close the EU market for import of certain agricultural products.  
                                                      
63 WTO document G/AG/N/EEC/67, 18 January 2011. WT/TPR/M/248/Add.1 
Page 393 
 
 
  In this regard we would like to enquire whether th e EU is planning to revise its level of market 
protection in line with further liberalisation policies?  
Answer 
Please see our reply to question 6.  
 161. In its Uruguay Round commitments, the EU reserv ed the right to use the Special Agricultural 
Safeguard (SSG) on 539 tariff lines.  However, actua l use of the SSG has been on a limited range of 
products.  The price-based SSG has been made ope rational for chicken, tu rkey, and sugar products 
almost continuously, with some egg products adde d for marketing years 2007/08 and 2008/09.  The 
EU has calculated trigger volumes for fruit and vege tables on a regular basis but the volume-based 
SSG has never been implemented.  
Question 8 
What is the current situation with the applicati on of SSG? Could the EU provide more information 
regarding the products subject to SSG and its mechanism? 
 
Answer 
The EU applies the SSG in conformity with Artic le 5 of the Agreement on Agriculture and notifies to 
the WTO an annual summary of the products for wh ich special safeguard actions have been taken. 
Actual use of the SSG has been on a limited range of products.  The price-based SSG has been made 
operational for chicken, turkey, and sugar products almost continuously;  with some egg products 
added for marketing years 2007/08 and 2008/09.  The EU has calculated trigger volumes for fruit and 
vegetables on a regular basis but the volume -based SSG has never been implemented. 
For further details, please refer to  the documents listed below: 
G/AG/N/EEC/66 of 12 January 2011;  G/AG/N/EEC/63 of 25 January 2010; 
G/AG/N/EEC/60 of 26 March 2009; 
G/AG/N/EEC/54 of 14 February 2008 (on four separate marketing years).   
38. The export subsidy regime in the EU has not ch anged substantially over the past few years.  
Under its WTO commitments, the EU can use expor t subsidies for 20 different product groups, of 
which 10 actually received subsidies in the 2007/08 marketing year, the most recent year for which a 
notification has been made.
64  The amount of export subsidy vari es from one product to another and 
can vary from one market to another but, in res ponse to domestic reforms and higher world prices for 
agricultural products, some products no  longer receive export subsidies. 
Question 9 
Regarding the commitments on export subsidies in agriculture, what is the present situation with 
reduction of such trade distorting support?  We ask the EU to provide most recent information 
regarding the application of export subsidies on agricultural products in 2009/2010, number of 
products, which received export subsid ies and levels of such support.  
 
Answer  
The EU notification on export subsidies on agr icultural products, covering the marketing year 
2009/2010 is currently under preparation and once fi nalized will be submitted to the Committee on 
Agriculture.  
 
                                                      
64 WTO document G/AG/N/EEC/61, 15 October 2009. WT/TPR/M/248/Add.1 
Page 394  
 
 WT/TPR/S/248, p. 126 
 
(a) Road transport 
78. At present, road transport relations between individual member States and third countries 
(except Switzerland) are governed by bilateral ag reements.  Negotiations to establish a common road 
transport market between the EU and its south- eastern European neighbours (Albania, Bosnia and 
Herzegovina, Croatia, FYROM, Mont enegro, Serbia, and Kosovo) are on-going.  In parallel to the 
adoption of EU legislation (the acquis ) by south-east European partners, markets will be opened 
progressively under a quota system.  The quota will be additional to any quotas established under 
existing bilateral agreements with individual EU member States, agreements that are to remain in 
force. 
 
Question 10 
In the framework of Ukraine-EU DCFTA negotiations  the EU insists that road transport relations 
should be discussed between Ukraine and individual member States.  At the same time the list of 
south-eastern European neighbours with whom the EU  is negotiating establishment of a common road 
transport market comprises both candi date and non-candidate countries.  
Why the EU does not agree to discuss in the Uk raine-EU DCFTA negotiations establishment of a 
common road transport market, whereas precisely this  form has been suggested by the EU to its 
south-eastern European neighbours?  Answer 
The question from Ukraine seems to  fall outside the scope of the Trade Policy Review since it 
concerns an on-going bilateral negotiation with the EU.  It should therefore be replied to in the 
framework of the bilateral negotiations.  
 
WT/TPR/S/248   Summary, paragraph 14  Question 11 
Ukraine welcomes continued process of deregulation and liberalization in some specific services 
sectors and implementation of the Services Directive,  according to which member States must ensure 
that their authorization schemes for service provi ders are non-discriminatory, proportionate.  Taking 
into account that several member St ates missed the end-2009 deadline to transpose the Directive into 
national legislation, Ukraine would like to find out about plans of these EU member states for implementation of the Services Directive and furthe r liberalization of burdensome requirements that 
continue to restrict intra-EU services trade. 
 
Answer 
It is noted that to date the overwhelming majo rity of Member States has implemented the Services 
Directive.  Only a few Member States are facing an infringement procedure from the European  
Commission for late and unfinished transposition of the 2006/123/EC Directive.  This process could 
lead to a ruling of the EU Court of Justice should those Member States not be able to complete the 
implementation in the coming months.  Furthermore, in case an EU Member State (having considered the implementation to be completed) 
maintains an existing legislation which is considered  by the European Commission to be incompatible 
with the Services Directive, the European Commission can start an infringement  procedure in order 
to obtain more information and to have a Member States modify its legislation (if it is still considered, after these exchanges, not compatible with th e provisions of the Services directive).  
 WT/TPR/M/248/Add.1 
Page 395 
 
 
  In case of continuous disagreement between a Member State and the European Commission about the 
compatibility of a national legislation with the S ervices directive (the same apply to any other EU 
legal instrument), then the European Commission can call for the European Union Court of Justice to judge the compatibility of such a legislation.  Ju dgments of the EU Court of Justice are of course 
mandatory and can include financial sanctions for Member States whose legislation would be judged 
as non-conform with EU legislation.  
EL SALVADOR 
 
Ш. POLÍTICAS Y PRÁCTICAS COMERCIALES, POR MEDIDAS 
(1) M EDIDAS QUE AFECTAN DIRECTAMENTE A LAS IMPORTACIONES  
(iii) Normas de origen 
Párrafo 18 
"La prueba utilizada para determinar el origen, a efectos no preferenciales, de las mercancías importadas 
producidas en más de un país es la "transformación  sustancial".  Según esta prueba, una mercancía 
será originaria del país en el que se haya producido "la última transformación o elaboración sustancial, 
económicamente justificada, efectuada en una empresa equipada a este efecto, y que haya conducido a 
la fabricación de un producto  nuevo o que represente un grado de fa bricación importante". Para ciertas 
mercancías, en los Anexos 10 y 11 del Reglamento  de aplicación figura una lista de operaciones de 
transformación o elaboración.  Asimismo, las "normas de la lista" publicadas por la Comisión 
Europea sirven de orientación a las autoridades ad uaneras nacionales para evaluar la "transformación 
sustancial". Por lo general, estas normas se expresan en forma de cambio de partida o subpartida 
arancelaria en la nomenclatura del SA, un nivel mí nimo específico de valor añadido, o una operación 
específica de fabricación o transformación". 
Question 1 
¿Podría explicar la UE a qué se refiere cuando menciona que la última transformación o elaboración 
sustancial debe estar económicamente justificada? ¿S ignifica lo anterior que el país en el que se 
incorpora el proceso productivo de mayor valor m onetario es el que le confiere el origen a la 
mercancía? 
 
Answer 
In accordance with the WTO Agree ment on Rules of Origin, the non-preferential origin of a product 
can be determined on the basis of three criteria: change of tariff classification, added value or 
specific processing operation.  The EU uses all three of these criteria and therefore does not rely 
exclusively on the "major monetary value" of the different stages in the production process. 
 The condition that the last substantial transformation needs to be "economically justified" is meant as 
a safety net in order to avoid the manipulation of production processes with the aim of circumventing 
trade policy measures. 
 
(vi) Medidas comerciales especiales 
(a) Derechos antidumping y compensatorios 
Párrafo 58 
"La UE sólo puede imponer medidas antidumping si  la Comisión determina que la medida no es 
contraria al interés general de la economía de la UE. Desde el anterior examen de la UE, no se ha puesto 
fin a ningún procedimiento antidumping por habers e constatado que la me dida en cuestión fuera 
contraria al "interés comunitario". WT/TPR/M/248/Add.1 
Page 396  
 
 Question 2 
¿Podría la Unión Europea explicar si existen pará metros o criterios establecidos en directrices o 
disposiciones legales expresas que permitan dete rminar cuándo una medida antidumping puede 
resultar contraria al interés general de su economía? 
 
Answer : 
The legal basis for the Community interest test is Art. 21 of the basic anti-dumping Regulation, which 
calls for an "appreciation of all the various interests ta ken as a whole".  In th is global appreciation, 
the need to eliminate the trade distorting effect s of injurious dumping and to restore effective 
competition is given special consideration.  The test to be carried out by the Community Institutions is 
whether it can be clearly concluded that it is not in  the Community interest to  apply such measures.  
Firstly, of an evaluation of the likely consequenc es of the application or non-application of the 
envisaged measures on the interests of the Community  industry and of other parties covered by the 
scope of Article 21.  This means basically that a prospective assessm ent has to be made in order to 
establish for each group of economic operators the li kely effect of taking or not-taking measures. 
While such prognosis has to work with hypotheses, it is not speculative but based on factual data and 
evidence.  Secondly, all the different interests examine d have to be balanced against each other.  In 
other words, it must be found that the disadvantag e to the other interested parties would be clearly 
disproportionate to any advantages given to the Community industry by the imposition of measures.  
 
(vii) Restricciones y controles 
Párrafo 71 
"En octubre de 2010, la UE adoptó una ley por la que  se prohíbe la comercialización en la UE de 
madera aprovechada ilegalmente y productos que c ontengan esa madera.  De  conformidad con el 
Reglamento No 995/2010, los "agentes" que comercia lizan por primera vez madera y productos de la 
madera de producción nacional o importados en el me rcado de la UE deben ejer cer la "diligencia debida" 
a fin de minimizar el riesgo de que esos productos contengan madera aprovechada en in cumplimiento de 
la legislación aplicable del país de  aprovechamiento.  El sistema de  diligencia debida comprende una 
gestión de riesgos sobre la base de la información y los criterios establecidos en el Reglamento. 
Además, las personas que comercian con madera y productos de la made ra dentro de la UE, distintas 
de quienes comercializan por primera vez esos pro ductos en el mercado de la UE, deben mantener 
registros de sus proveedores y sus cl ientes.  El Reglamento se aplicará  a partir del 3 de marzo de 2013, y 
dos medidas de aplicación, que serán desarrolladas por la  Comisión, deberán adoptarse para el 3 de marzo 
y el 3 de junio de 2012. Se considera que la madera y los productos de la madera abarcados por licencias 
válidas conforme a la FLEGT o la Convención sobr e el Comercio Internacional de Especies Amenazadas 
de Fauna y Flora Silvestres cumplen las prescripciones del nuevo Reglamento". 
 
Question 3  
¿Podría la Unión Europea indicarnos bajo qué signatu ra fue notificado el Reglamento No 995/2010 al 
respectivo Comité de la OMC y a su vez, podría indicarnos si ya han sido designadas las autoridades 
competentes para la administración a que se refiere el art. 8 del citado Reglamento? 
 
Answer 
The proposal for Regulation (EU) 995/2010 did not cont ain any technical regulations and that is why 
no notification under the Agreement on Technica l Barriers to Trade has been made.   
With regard to the designation of competent authorities Regulation (EU) 995/2010 (the EU Timber 
Regulation) provides in Article 7 that each Me mber State shall designate one or more competent 
authorities responsible for the application of the Regul ation.  It obliges Member States to inform the 
Commission of the names and addresses of the competent authorities by 3 June 2011.  The Commission has been notified of the designation of competent authorities by Member States and will publish a list with their nam es and addresses on its webpage soon. WT/TPR/M/248/Add.1 
Page 397 
 
 
  (viii) Reglamentos técnicos y normas 
Párrafo 93 
"Algunos Miembros de la OMC han expresado su preocupación por los posibles efectos del nuevo 
marco de acreditación de la UE en el reconocimiento por los Esta dos miembros de organismos de 
acreditación de países no pertenecientes a la UE en el marco del Acuerdo Multilateral de 
Reconocimiento del Foro Internaciona l de Acreditación y el Acuerdo de Reconocimiento Mutuo de la 
Cooperación Internacional sobre Acreditación de Laboratorios de Ensayo (véase el cuadro III.7 
supra).  En su respuesta, la UE ha indicado que el marco común de acreditación es un instrumento de 
apoyo de la política normativa interna de la UE  basado en el actual marco internacional de 
acreditación.  Además, la UE ha señalado que el ma rco común no tiene la finalidad de "cambiar ni 
menoscabar" los acuerdos de cooperación internacional  entre los organismos de acreditación; y que 
"no tiene efectos ni impone cambios en las prácticas de acreditación de terceros países". 
Question 4 
¿Podría indicar la Unión Europea cómo es compatible el marco común de acreditación con el marco 
internacional de acreditación, principalmente en lo referente al reconoc imiento por los Estados 
miembros de organismos de acreditación de países no miembros de la UE? 
 
Answer 
Pursuant to Article 2(11) of Regulation No. 765/2008, "accreditation body" is a body in an EU 
Member State that performs accreditation with author ity derived from the State.  As a result, only the 
single national accreditation bodies appointed by ea ch Member State and fulfilling the requirements 
of Regulation No. 765/2008 are considered to be  accreditation bodies within the meaning of the 
Regulation.  There is therefore no issue of national  competence of individual Member States in 
relation to the recognition of non-EU accreditation bodies. 
 
The EU's common accreditation framework is a tool  to support the EU's internal regulatory policy 
and is based on the existing international accreditation framework.  It is not intended to change or 
undermine international cooperation arrangements operated under ILAC (International Laboratory 
Accreditation Cooperation) and IAF (International A ccreditation Forum) and to affect or force 
changes in accreditation practices in other WTO Members. 
 
For further details, reference is made to the presentation given by an EU expert at the TBT 
Committee meeting of 24-25 March 2010 (JOB/TBT/2 of 16.4.2010) and the discussions on the EU's common accreditation framework that have taken pl ace in the TBT Committee since June 2009, as 
documented in the meeting minutes prepared by the WTO Secretariat. 
Párrafo 96 
"En julio de 2008, el Parlamento Europeo y el Consejo adoptaron el Reglamento No.764/2008 "para 
minimizar la posibilidad de que la s normas técnicas creen obstáculos ilegales para la libre circulación 
de mercancías entre Estados miembros";  sin embargo desde la fecha de entrada en vigor del 
Reglamento No. 764/2008 y diciembre de 2010, la  Comisión recibió 1.114 notificaciones de siete 
Estados miembros en las que denegaban la come rcialización en su territorio de productos no 
armonizados que se comercializaban legalmente en otros Estados miembros". 
Question 5 
¿Podría la Unión Europea indicar cómo opera el mecanismo de transparencia para divulgar los 
requisitos aplicables por cada Estado miembro de la  UE para los productos no armonizados, a efecto 
de no crear obstáculos innecesarios al comercio? 
 WT/TPR/M/248/Add.1 
Page 398  
 
 Answer 
The EU understands that El Salvador refers to the EU's internal notification system that is laid down 
in Directive 98/34/EC laying down a procedure for th e provision of information in the field of 
technical standards and regulations.  This Di rective obliges Member States to notify to the 
Commission all technical regulations and conformity  assessment procedures at a draft stage and 
gives the possibility to the Commission and all oth er Member States to verify  whether the national 
legislation does not create any unjustified obstacles to  intra-EU trade and is in compliance with the 
Treaty on the Functioning of the European Union and EU harmonized legislation.  More specific 
information about the notification procedure can be found on the European Commission's website 
(http://ec.europa.eu/enterprise/tris/index_es.htm). In  addition, all EU Member Stats are full Members 
of the WTO in their own individual capacity a nd therefore subject to the obligations of the TBT 
Agreement, including the notification obligation 
 
(ix) Normas sanitarias y fitosanitarias 
Párrafo 118 
"El Sistema de Alerta Rápida para Alimentos y Piensos (RASFF) es una red gestionada por la 
Comisión que permite a las autoridades de control de los alimentos y los piensos de los Estados 
miembros intercambiar información sobre las me didas adoptadas en respuesta a riesgos graves 
detectados en relación con los alimentos y los pi ensos.  El fundamento jurídico del RASFF es la 
Legislación Alimentaria General, en la que se establecen los criterios de notificación al RASFF.  Por 
ejemplo, los miembros del RASFF están obligados a notificar los casos de rechazo de alimentos y 
piensos en la frontera cuando el envío se rechace porque hay riesgo para la salud humana o animal. 
Los rechazos en la frontera representan algo menos de la mitad de las notificaciones originales al 
RASFF.  En 2009, las notificaciones de rechazo en la  frontera relacionadas con alimentos de origen 
no animal fueron casi el doble de las relacionadas c on alimentos de origen animal.  La principal 
categoría de alimentos de origen animal indicada en  las notificaciones de rechazo en la frontera es la 
de "frutos secos y sus productos, y semillas", al tiempo que el pescado es la principal categoría de 
alimentos de origen animal". 
Question 6 
¿Podría la Unión Europea explicar si existe al gún mecanismo para comparar el número de rechazos 
efectuados en frontera con las notificaciones de éstos realizadas al RASFF? 
 
Answer 
The Commission Regulation 882/2004 on official contro ls performed to ensure the verification of 
compliance with feed and food law, animal health a nd animal welfare rules defines "official control" 
as any form of control that the competent authorit y or the Community performs for the verification of 
compliance with feed and food law, animal health and animal welfare rules.   Therefore, official 
controls shall be carried out at any of the stages of production, processing and distribution of feed or 
food and of animals and animal products.  
This includes controls of products at import. In par ticular for products of anim al origin imports shall 
take place following official controls at the designa ted border inspection posts (BIPs).  Any rejection 
is compulsory communicated to the RASFF system.  
(2) M
EDIDAS QUE AFECTAN DIRECTAMENTE A LAS EXPORTACIONES  
(v) Financiación, seguros, garantías y promoción 
Párrafo 139 
"En enero de 2011 la Comisión publicó una comunic ación por la que se prorrogaba la simplificación 
de los procedimientos relativos al seguro de créd itos a la exportación a corto plazo hasta finales de 
201l.  [l] La Comisión observa que a las empresas le s sigue resultando difícil obtener cobertura de los 
aseguradores privados en muchos sectores y en muchos Estados miembros.  Además, en diciembre de WT/TPR/M/248/Add.1 
Page 399 
 
 
  2010 la Comisión decidió prorrogar la aplicación del ma rco jurídico básico del seguro de créditos a la 
exportación a corto plazo hasta finale s de 2012 (comunicación de 1997) [2]". 
 
Question 7 
¿Podría la UE indicar qué sectores se han amparado al mecanismo del seguro de créditos a la 
exportación a corto plazo (cláusula de salv aguardia) desde que éste fue implementado? 
 
Answer 
The impact of the global financial crisis on the cred it insurance markets differs  widely from Member 
State to Member State.  Consequently, some Memb er States have never seen a need to invoke the 
escape clause, while others have done so and – after positive decision by the Commission on the 
intended measures – implemented someti mes substantial support schemes.  
 Furthermore, it has to be kept in mind that su ch support schemes are organized on a geographical 
basis (i.e. according the country of export destination). 
 
Therefore, there is no official EU wide estimate on how far which economic sectors are affected by 
the use of the escape clause.  (3) M
EDIDAS QUE AFECTAN A LA PRODUCCIÓN Y EL COMERCIO  
(i) Marco de la actividad empresarial  y régimen de inversiones extranjeras 
Párrafo 144 
"En circunstancias excepcionales, el Consejo puede  adoptar medidas de salvaguardia temporales que 
limiten los movimientos de capitales con terceros países, conforme a las condiciones establecidas en 
el artículo 66 del Tratado de funcionamiento de la UE". 
Question 8 
¿Podría indicar la UE cuáles son las formas o m odalidades que podrían adoptar las medidas de 
salvaguardia temporales a que se hace referencia en este párrafo? 
 
Answer 
Article 66 
TFEU does not specify the kind of measures which may be taken under this safeguard provision.  
Thus there is no limitation to certain instruments.  However it should be underlined that these 
provisions may only be invoked- in exceptional ci rcumstances - for a very limited period of time (not 
exceeding 6 months) - if such measures are strict ly necessary to safeguar d the operation of the 
economic and monetary union.. 
 
It is noted that no measures pursuant to Article  66 TFEU have been taken since this provision was 
included in the Treaty in 1994. 
Question 9 
¿Podría indicar la UE si en el período sujeto a examen se han adoptado medidas de salvaguardia 
temporales y en caso de haberse aplicado, indicar a qué países y las razones por las que fueron 
impuestas? 
 
Answer 
No measures pursuant to Article 66 TFEU have been taken since this provisio n was included in the 
Treaty in 1994. WT/TPR/M/248/Add.1 
Page 400  
 
 Párrafo 148 
"Varios Estados miembros, entre ellos Alemania, Fr ancia y el Reino Unido, aplican procedimientos 
de examen de la IED por razones de seguridad nacional". 
Question 10 
Para el caso de los exámenes de la  IED por razones de seguridad naciona l, ¿podría  la UE indicar cuál 
es el porcentaje de resultados favorables a los inve rsionistas, en relación al total de exámenes 
practicados? 
 
Answer 
Only the EU Member States would have precise data, but it would seem that cases of rejections, if 
any, are extremely rare 
Párrafo 151 
"En Alemania, antes de efectuar la adquisición de una empresa residente, los inversores extranjeros 
pueden solicitar un certificado que confirme que su adquisición no pone en peligro la política o la 
seguridad públicas. Las solicitudes deben estar ac ompañadas de una descripción general de la 
adquisición prevista e información sobre los inversores y sus actividades". 
Question 11 
¿Podría la UE indicar cuáles son los requisitos qu e deben cumplir los inversores extranjeros para 
solicitar los certificados previos que confirmen que su  adquisición no pone en peligro la política o la 
seguridad pública? 
 
Answer 
In order to obtain legal certainty at an early stage, the acquirer himself may apply for an 
investigation according to the implementing regulation.  He is required in this instance to transfer to 
the authority all documents pertaining to the acquis ition.  If the necessary info rmation is provided, the 
authorities may only refuse such a certificate if there would be concerns relating to the public order 
or security of the Federal Republic of Germany. 
Párrafo 155 
"En diciembre de 2010 se estaban tomando medidas para tener en cuenta la petición oficial hecha por 
la Comisión Europea a Francia de que modificara el  Decreto 2005-1739 de 30 de diciembre de 2005.  
La Comisión tiene que algunos aspectos de ese decreto estén en contradicción con el Derecho 
comunitario y puedan desalentar la inve rsión de otros Estados miembros". 
Question 12 
¿Podría la UE indicar cuáles son las medidas que ha previsto implementar Francia para tomar en 
cuenta la petición hecha por la Comisión Europea,  relacionada con la necesidad de modificar el 
Decreto 2005-1739 de 30 de diciembre de 2005? 
 
Answer 
Within the infringement procedure initiated by th e European Commisison, the contacts between the 
European Commission and the French Government rel ated to this decree are still on-going . 
 
(ii) Empresas comerciales del Estado y empresas estatales 
Párrafo 159 
"Existen monopolios de jure de larga data en varios  Estados miembros, por ej emplo en el transporte 
por ferrocarril, la energía, los servicios públicos y los juegos de azar". WT/TPR/M/248/Add.1 
Page 401 
 
 
  Question 13 
¿Podría la UE indicar si tiene previsto implemen tar algún plan o política encaminada a la eliminación 
de los monopolios que aún existen en algunos Estado s miembros en sectores como el transporte por 
ferrocarril, la energía, los servicios públicos y los juegos de azar?  En caso de ser afirmativo indicar 
¿en qué consiste dicho plan? 
 
Answer 
The EU system is characterised by the fact that the principle of competitive neutrality between public 
and private enterprises is recognized in our Treaty which provides that the Treaty shall "in no way 
prejudice the rules in Member States govern ing the system of property ownership." 
Art 37 TFEU foresees that the Member States shall adjust any monopolies of commercial character 
(and not others) so as to ensure no discrimination.  From the point of view of competition, this translates into the obligations foreseen in article 106 :  (1) for public undertakings and undertakings 
with special or exclusive rights (including m onopolies), Member States shall not maintain any 
measure contrary to the Treaty and (2) undertaki ngs operating services of general economic interest 
must be subject to the rules on competition in so fa r as the application of this does not obstruct the 
performance of their obligations. 
This means, for services of genera l economic interest, that the EU does not request the abolishment of 
monopolies, simply that they be subject to normal rules on competition. Exceptions must be limited and justified with respect to their special obligations 
As regards legal monopolies in the rail sector of  the EU, there three distinct main segments of 
transport services. Since the opening of the rail f reight market for competition on 1 January 2007 and 
the opening of international passenger services, notably including the right to pick up and drop 
passengers at stations within a Member Stat e, on 1 January 2010, there are no more legal 
monopolies.  As regards domestic passenger servi ces by rail, many Member States have opened 
access to their networks already years ago and the EU  Commission has announced that it will submit 
a legislative proposal on the opening for competition in  2012.  If adopted, this would mean the end of 
all legal monopolies in the rail sector in the remaining Member States.  
When awarding contracts to compensate public servi ce obligations in the field of rail passenger 
services, competent authorities in Member States may decide to grant exclusive rights for passenger 
services on these railway lines. This is only allo wed if specific conditions are met and is not 
considered as a legal monopoly within  the meaning of the present question. 
 
(iii) Subvenciones y Otras Ayudas Gubernamentales 
Párrafo 177 
"Aparte del apoyo al sector financiero, los Esta dos miembros prestaron ayuda a la economía real, 
principalmente en el contexto más amplio del Pl an Europeo de Recuperación Económica, aprobado 
en diciembre de 2008 con el propósito de asegurar una respuesta a la crisis coordinada al nivel de la 
EU. De conformidad con el Plan, los Estados miembros deben asignar el 1,2 por ciento del PIB a la 
realización de actividades para cont rarrestar los efectos de la crisis  y adoptar medidas de corto plazo 
en apoyo del empleo, la infraestructura, la construcción y las empresas. Como parte del Plan, a 
comienzos de 2009 la UE estableció un "marco temp oral" que permite a los Estados miembros prestar 
ayuda estatal hasta finales de 2010 en respuesta a las dificultades excepcionales que experimentan las 
empresas para obtener financiación.  Al igual que las comunicaciones sobre la ayuda a los bancos, el 
marco temporal se apoya en el concepto de que la gravedad de la crisis justifica, por un período 
limitado, la aplicación de medidas de ayuda estatal  sobre la base de las disposiciones del artículo 
107 3) b) del Tratado de funcionamiento de la UE". WT/TPR/M/248/Add.1 
Page 402  
 
 Question 14 
¿Podría confirmar la UE si el Plan Europeo de Recuperación Económica concluyó en el 2010, o si ha 
sido extendido para el presente año? 
 
Answer 
The European Economic Recovery Plan (EERP) ended in  2010.  The fiscal stimulus provided under 
the EERP was always supposed to be temporary and the programme was always supposed to end at 
the latest by end 2010.  
Question 15 
¿podría la ÜE indicar cuáles son los mecanismos  que ha utilizado para vigilar que la ayuda 
gubernamental otorgada bajo el Plan Europeo de  Recuperación Económica se encuentra acorde con el 
Art. 107 3) b) del Tratado de Funcionamiento de la UE?. 
 
Answer 
The European Recovery Plan made reference, among ot her initiatives, to the adoption of additional 
State aid possibilities to be offered to the Memb er States.  On this basis, the Commission adopted a 
number of Communications addressed to the financia l sector as well as the Temporary Framework 
aiming at the real economy.  These initiatives were ba sed on article 87.3.b of the Treaty (current 
article 107.3.b of the TFEU) which allows the Commission to authorize aid "to remedy a serious 
disturbance in the economy of a Member States".  
This legal basis is very exceptional and therefore a st rict interpretation has been consistently applied 
by the Commission in its decision-making.  In the fi rst place, the Commission ensured that this aid is 
limited in time.  In addition, the Commission required Member States to show that the notified State 
aid measures are necessary, appropriate and propor tionate to remedy a serious disturbance in the 
economy of a Member State and that all the conditions  of the specific frameworks are fully respected. 
In particular, the disturbance must affect the w hole of the economy of the Member State concerned, 
and not merely that of one of its regions or parts of its territory 
 
(iv) Contratación publica 
Párrafo 188 
"La finalidad de la política de contratación pública de la UE es alcanzar la mayor eficiencia en la 
utilización de los recursos a través de procedimientos  abiertos, transparentes y no discriminatorios, 
compatibles con los objetivos subyacentes del Mercado Interno". 
Question 16 
¿Podría la UE indicar cuál es el porcentaje de licitaciones que se llevan a cabo mediante 
procedimientos abiertos, así como el porcentaje de los que se llevan a cabo medíante otro tipo de 
procedimientos de contratación? 
 
Answer  
According to provisional data (2006-2010), open pr ocedures account for 73% of contract awards, 
corresponding to 52% of the total value of all EU c ontracts advertized at the EU level.  As far as 
restricted procedures are concerned, they account for 9% of contracts awards, corresponding to 23% 
of the total value of all EU cont racts advertized at the EU level. 
Párrafo 191 
"En diciembre de 2008 la Comisión reconoció que el  carácter excepcional de la crisis mundial podía 
justificar el uso del procedimiento acelerado, que re ducía el plazo general de contratación de 87 a 30 
días. Posteriormente, la Comisión estableció un mecanismo para vigilar la aplicación de esta opción 
por los Estados miembros". WT/TPR/M/248/Add.1 
Page 403 
 
 
  Question 17 
El Salvador tiene interés en conocer ¿cuáles son los países que aplicaron el procedimiento acelerado 
para reducir el plazo general de contratación y cuál  es el mecanismo que se implementó para vigilar la 
aplicación de esta opción? 
 
Answer 
The Article 38 (8) of the public procurement Di rective 2004/18/EC allows recourse to accelerated 
procedures where justified on the grounds of urge ncy.  The Commission recognised that the 
exceptional nature of the economic situation caused by  the global financial crisis can justify the use of 
the accelerated procedure on grounds of urgency. 
The EU has set up a monitoring mechanism of th e use of the accelerated procedure justified on 
grounds of urgency via the Advisory Committee for Public Contracts (composed of Member States). 
The Member States provide statistical information on  the contracts for which this procedure has been 
used.  The information includes an overview of th e contract values, types of contracts (works, 
services, supplies), and business sectors.  
The information collected by the Commission show s that it is Germany, Romania and the UK who 
used the most this possibility in 2009, as compared to the situation in 2008. 
Párrafo 200 
"La UE apoya firmemente la adhesi ón de nuevos miembros al ACP, con la estrategia a largo plazo de 
convertir el ACP en un acuerdo multilateral. Al mismo tiempo, está dispuesta a negociar acuerdos 
bilaterales sobre contratación pública. La UE tiene el objetivo fundamental de contribuir, a través de 
sus relaciones comerciales bilaterales, al estableci miento de principios de contratación efectivos, 
modernos e internacionales, y de liberalizar sustan cialmente los mercados de contratación pública". 
Question 18: 
¿Podría la UE indicar si cuenta con datos sobre los proveedores de países que no son signatarios del 
ACP, pero que en virtud de acuerdos bilatera les se han visto favorecidos con adjudicaciones de 
contratos? En caso afirmativo, agradeceríamos proporcionar la información. 
 
Answer 
The EU is currently gathering the relevant data. 
 
(v) Política de Competencia y Propiedad Intelectual 
Párrafo 224 
"Recientemente, los esfuerzos de la Comisión en ma teria de control del cumplimiento se han centrado 
particularmente en la industria farmacéutica, que  depende en gran medida de los derechos de 
propiedad intelectual.  En enero de 2008 la UE lle vó a cabo una amplia investigación para determinar 
por qué se estaban comercializando menos medicam entos nuevos y por qué en algunos casos parecía 
demorarse la entrada de genéricos.  La investigaci ón reveló que los ciudadanos  tenían que esperar más 
de siete meses después del vencimiento de la pate nte para obtener genéricos más baratos, lo que 
suponía un 20 por ciento de gastos adicional.  La demora de la entrada al mercado de los genéricos 
podía atribuirse al marco reglamentario y a determinadas prácticas de las compañías.  La 
investigación demostró que los fabricantes del producto  original utilizaban diversos instrumentos para 
proteger la vida comercial de sus productos impidie ndo la entrada de los genéricos. Concretamente, el 
22 por ciento de los acuerdos sobre patentes, que abarcaban medicamentos por un valor superior a 
200 millones de euros podían plantear problemas. La  UE considera que estos instrumentos, aunque 
sean totalmente legítimos, pueden en determinadas circunstancias infringir la legislación europea en 
materia de competencia. En 2010 la Comisión realiz ó un ejercicio de supervisión, centrándose en los 
acuerdos sobre patentes concluidos en el sector  farmacéutico. Este ejercicio reveló que, en WT/TPR/M/248/Add.1 
Page 404  
 
 comparación con 2008, el número de acuerdos ha bía aumentado pero en menor número de ellos 
podría plantear problemas (a saber, el 10 por ciento , y el valor abarcado por estos acuerdos se redujo a 
1 millón de euros). Este descenso refleja una mayor c onciencia de la industria  de que los acuerdos de 
este tipo pueden dar lugar a una vigilancia en el marc o de la legislación en materia de competencia". 
Question 19 
¿Podría la UE indicar si ha considerado la posibilidad  de iniciar una investigación de oficio, a raíz de 
determinadas prácticas de las compañías farmacéu ticas que en algunos casos demoran el ingreso de 
genéricos al mercado, como ocurre en el caso de los acuerdos sobre patentes? 
 
Answer 
The European Commission has already engaged in ex o fficio action in order to ensure that cheaper 
generic drugs are not being unduly kept out or delayed  into the market. In that respect, the European 
Commission has two open investigations with respect to patent settlements relating to Servier (see 
MEMO/09/322) and Lundbeck (IP/10/8).  Th ese investigations result from the European 
Commission's 2010 monitoring exercise in which data was collected on settlement agreements 
between originator companies and generic ones and  the competition inquiry into the pharmaceutical 
sector which was concluded in July 2009.  
 
As a result of these exercises, the number of settleme nts that may be problematic from a competition 
perspective have decreased significant ly in importance and number.  In fact, the number of potentially 
problematic settlements has fallen from 22% in the 2008 competition i nquiry to 10% in the European 
Commission's 2010 monitoring exercise.  The direct valu e transfers involved in the settlements also 
decreased.   
Question 20 
¿Podría la UE indicar cuáles son las acciones que están realizando para mejorar su marco 
reglamentario en materia de propiedad intelectual, a fin de minimizar algunas prácticas 
anticompetitivas que demoren el ingreso de genéricos al mercado? 
 
Answer 
When it comes to safeguarding the entry of generic medicines to the market, the emphasis is on the 
monitoring of patent settlements rather than the reg ulatory framework.  Indeed, patent settlements in 
themselves are an effective means to end patent-relat ed disputes and litigation.  What is important is 
to identify those patent settlements that are an ticompetitive.  The settlements that are most 
problematic are those that limit generic entry and foresee a value transfer from originator to a 
generic company.  The value transfer can take differen t forms such as direct payments, but can also 
consist of other commercial advantages.  Also settlements that contain restrictions beyond the 
exclusionary zone of the patent, i.e. which would grant protection against ge neric entry outside the 
time, product or geographic scope of the patent a re potentially problematic.  The Commission will 
continue monitoring the sector to make sure that the settlements in the sector are not delaying entry of 
generics in the market or do not contain other rest rictions that would be problematic under EU 
competition law. 
 
IV. EVOLUCIÓN EN DETERMINADOS SECTORES (1) A
GRICULTURA  
(i) Políticas agrícolas 
(c) Subvenciones a la exportación 
 WT/TPR/M/248/Add.1 
Page 405 
 
 
  Párrafo 38 
"El régimen de subvenciones a la exportación de la  UE no ha experimentado cambios sustanciales en 
los últimos años.  En virtud de los compromisos que  le corresponden en el marco de la CMC, la UE 
puede utilizar las subvenciones a la exportación para 20 grupos de productos diferentes, de los cuales 
10 recibieron subvenciones en la campaña de come rcialización 2007/2008, año más reciente para el 
que se ha presentado una notificación.  [l] La cuan tía de la subvención a la exportación varía en 
función de los productos y puede vari ar de un mercado a otro, pero, a fin de ajustarse a las reformas 
internas y al aumento de los precios mundiales de los productos agrícolas, algunos productos han 
dejado de recibir subvenciones a la exportación". 
 
Question 21 
¿Podría la UE identificar los productos a los cu áles se ha dejado de brindar subvenciones a la 
exportación? 
 
Answer 
The EU no longer grants export refunds for rapes eed, olive oil, wine, fruit and vegetables, raw 
tobacco and alcohol. 
 
(2) C OMERCIO DE SERVICIOS  
(iv) Telecomunicaciones y servicios postales 
 
(a) Telecomunicaciones 
Párrafo 95 
"En el decenio de 1980 empezó la liberalizáci ón del sector de las telecomunicaciones para los 
servicios de valor añadido, y en 1998 se puso fin a los monopolios de las redes públicas en la mayoría 
de los Estados miembros.  Desde entonces, se ha prestado especial atención a la aplicación y 
armonización del marco normativo.  Sin embargo, aunque la competencia ha aumentado y los 
consumidores se benefician de precios más bajos y mejores servicios, el mercado de los servicios de 
telecomunicaciones de la UE sigue fragmentado, ya  que los órganos de reglamentación nacionales no 
han aplicado el marco de la UE de manera uniforme.  Son pocas las empresas que suministran 
servicios paneuropeos, y la presentación de esos servi cios difiere entre los distintos Estados miembros 
como resultado de la diversidad de las prescripciones nacionales". 
 
Question 22 
¿Podría indicar la UE si el aumento en la competencia del sector de telecomunicaciones responde a la 
entrada de nuevos operadores en el mercado y de ser así, El Salvador tiene interés en conocer ¿de qué 
países provienen estos nuevos operadores? 
 
Answer 
Each year, the EU publishes a Progress Report on the Single European Electronic Communications 
Market.  The latest such report was published in  August 2010 and includes also specific chapters on 
each Member State.  For fu rther information, please see: 
http://ec.europa.eu/information_society/poli cy/ecomm/library/communications_reports/annualreports
/15th/index_en.htm. 
 
NORWAY 
 Question 1 
In light of increased consumer demand for seafood,  and that EU's reliance on imported raw material 
for its fish processing industry, does the EU intend to  liberalise and amend its trade regime for fish 
and fish products to meet current development in world seafood trade?  This would inter alia entail 
simplification of the trading regime, reducing tariff barriers such as TRQs and end-user requirements.  WT/TPR/M/248/Add.1 
Page 406  
 
 Answer 
The aim of the EU's trade policy for fishery produc ts is to ensure the balance among all stakeholders 
involved, including produ cers, processors and consumers.  
While it is correct that the EU is increasingly dependent on imports of fish and fishery products in order to satisfy its demand of fishery products, it is  also true that most of its imports of such, 
including those intended for the processing indust ry, face little, or no tariff barriers when entering the 
EU market.  In actual fact a large number of WTO Members, including Norway, can, by virtue of free 
trade agreements, preferential access regimes or oth er measures, export most, if not all, of their 
products to the EU either totally free of import duties or, alternatively, at reduced rates.  
As regards the evolution of the EU's trade regim e and current developments in world seafood trade 
the EU would like to emphasize that preferential ac cess to the EU market, such as Duty Free Quota 
Free (DFQF) access for LDCs, is granted in particul ar to developing countries, which are now, as a 
group, the largest producers and exporters of fish and fishery products. Furthermore and as the world's largest importer of fish products and an important exporter of these 
products, the EU has a major int erest in advancing trade liberalisati on, including export and import 
conditions, at both bilateral multilateral levels.  Concerning the latter, the EU has been actively 
participating in the WTO's Doha Development Ag enda negotiations on Non Agricultural Market 
Access (NAMA), which include fish products.  The EU  is of the view that the NAMA negotiations on 
tariff and non-tariff barriers for fish products offer the appropriate framework for all WTO Members, 
both developing and developed, to effectively contri bute to the liberalization of trade in fish and 
fishery products worldwide. 
 
MALAYSIA 
 Question 1 
It is noted that the Services Directive adopted in 2006 extends to all services except those excluded 
from its scope, for example, financial service s, audio-visual and broadcasting services and 
telecommunications which is regulated through its resp ective legislation.  Does this Directive apply to 
professional services as well?  Can the EU explain if professional services are harmonized throughout 
the EU?  Is there is an agreed criteria to recognise qualifications of professionals among EU 
Members? How would this reconcile  with non-EU service suppliers?  
 Answer 
The Services Directive deals with questions other th an those relating to professional qualifications. 
As regards the latter, the Professional Qua lifications Directive (2005/36/EC) applies (Official 
Journal L 255, 30 September 2005, p. 22).  The Professional Qualifications Directive provides in ter alia for a general system for the recognition 
of evidence of training and recognition of professional experience with regard to  professional 
qualifications, such as a number of health pr ofessions (doctors, dentists, nurses, midwives, 
pharmacists, veterinary surgeons) and architects.  For certain regulated professions, such as for 
example lawyers or statutory audito rs, specific Directives apply.   
 
Question 2 
In Paragraph 31 of the Secretariat report, we note that apart from ad valorem duties, the EU applies 
several non-ad valorem type duties, mostly on ag ricultural products.  Furthermore, the EU uses 
seasonal duties and duties that are reduced if a product's  declared price is above a certain level (entry 
price system).  We also took note on the increase of non-ad valorem duties in the EU tariff structure 
from 10.0% in 2006 to 10.6% in 2011 as shown in  Table III.2, Structure of MFN tariffs in the 
Secretariat report.  Are there any plans by the EU to reduce the use of non-ad valorem type duties?  
 
Answer  
The nature of an import duty should not be confused with the level of protection it provides. Malaysia 
will note that the calculation of an average duty depends on the methodology used to calculate ad WT/TPR/M/248/Add.1 
Page 407 
 
 
  valorem equivalents (AVEs) of non-ad valorem duties.  Any calculation of AVEs has shortcomings as 
the result can be influenced by several elements , including:  the base period and partners chosen; 
commodity prices;  exchange rates;  shocks in spec ific markets;  treatment of mixed tariffs and tariff 
lines for which trade data are not available; and the extent to which preferential trade is included in 
the unit value calculation. 
 
Question 3 
In Paragraph 31, we took note that the EU maintain ed the use of the "Meursing Table" to determine 
the customs tariffs for processed agricultural prod ucts based on what they are made of. These 
products include confectionary, cakes, and biscuits.  Th eir tariffs are defined according to the level of 
milk fats and proteins, sugar, and starch they c ontain.  The table results in thousands of possible 
combinations of tariffs.  Are there any plans by th e EU to eliminate the use of "Meursing Table" to 
determine the customs tariffs for processed agricultu ral products?  If no, is there any consideration by 
the EU to simplify the calculation of the duties or converting the 'Meursing Table' to simple non-ad 
valorem duties? 
 
Answer 
The tariff lines mentioned are bound in the EU  schedule resulting from the Uruguay Round. 
 
Question 4 
In Paragraph 73 and 74 of the Secretariat report states  that:  "73.Technical regulations and conformity 
assessment procedures are adopted at national and EU levels.  Only goods that are not covered by the 
EU's "fully harmonizing" legislation may be subject  to national technical regulations or conformity 
assessment procedures. Harmonizing legislation is legislation adopted jointly by the European 
Parliament and the Council, or by the Commissi on when the European Parliament and the Council 
have granted the relevant implementing powers to the Commission.  The general legal basis for the 
adoption of harmonizing legislation relating to the establishment and functioning of the EU internal 
market is Article 114 TFEU.  Other TFEU provisions  may also provide a relevant legal basis, 
depending on the subject.  For example, there is a substantial body of legislation in the field of 
agricultural products based on Article 38 TFEU.  74. Under Regulation No. 764/2008, the Commis sion must publish "a non-exhaustive list of 
products which are not subject to Community ha rmonization legislation".  According to the 
Commission, around 25% of the EU goods market is not covered by harmonizing rules.'  In this regard, we would like to know;  - How many technical regulations and conformity assessment procedures which are not harmonized 
at EU level; 
- What are the differences between technical re gulations and conformity assessment procedures 
adopted at national leve l and EU levels; and 
- Is there any possibility for the EU Members to harmonize their technical regulations and 
conformity assessment procedures for the remaining 25% of the EU goods.  
 
Answer 
The Commission does not have the statistics on the number of national technical regulations and 
conformity assessment procedures existing in all Me mber States.  It can, however, provide the number 
of national technical regulations and rules on In formation society services notified to the Commission 
under Directive 98/34/EC laying down a procedure for th e provision of information in the field of 
technical standards and regulations and of rules on information society services. In 2008, Member 
States notified to the Commission 601 drafts of techni cal regulations or rules on information society 
services, 709 in 2009 and 817 in 2010.  
 WT/TPR/M/248/Add.1 
Page 408  
 
 Technical regulations and conformity assessment procedures adopted at national and EU levels apply 
to different products or their different aspects.  Therefore, in some cases these regulations and 
procedures may be quite similar while in others they ma y vary widely.  However, as pointed out in the 
Report by the Secretariat, only products that a re not covered by the EU's "fully harmonizing" 
legislation may be subject to national technical re gulations or conformity assessment procedures. 
 
It is not always possible or even necessary to adopt har monized EU legislation for all goods.  In the 
non-harmonized area, the free movement of goods is guaranteed by the application of the general 
Treaty provisions and the operation of the mutual recognition principle as defined in the case-law of 
the Court of Justice of the European Union.  
 
For an overview of the legislati ve initiatives scheduled for adoption at EU level for 2011 and those 
planned for the period 2012-2014, please refer to the Commission Work Programme 2011 and its Annexes, available at: http://ec.eur opa.eu/atwork/programmes/index_en.htm. 
 
Question 5 
The EU's measure for reducing emissions in the aviation sector under the Emission Trading Scheme 
beginning 1 January 2012 is a unilateral decision wh ere the EU seems to remotely regulate aviation 
sector in third countries without multilateral consensu s.  In evaluating efforts by third countries to 
comply with this regulation (given a clause that ex empts airlines from countries that have "equivalent 
measures"), what are the criteria of "equivalence" to cap aviation emissions?" 
 
Answer 
While noting that the EU Emission Trading System (ETS ) is not a Trade measure, the EU is pleased to 
have an opportunity to further explain this system and th e inclusion of aviation into it.  Such inclusion 
applies to aircraft operators who choose to operate to  and from the EU market.  It does not apply to 
third countries, but in a non-discriminatory manner to those airlines that arrive at or depart from an 
EU airport. 
If a third country adopts measures for reducing th e climate change impact of  flights departing from 
that country which land in the European Union, th e EU can exclude all incoming flights from that 
country from the EU ETS.  The intention is to av oid double regulation of aviation emissions when 
other States decide to take action.  The measur es should have an environmental effect at least 
equivalent to that of the EU legislation. 
In the European reservation to the 2010 ICAO Assembly Resolution on Climate Change, the EC 
clearly indicated its willingness to engage w ith third countries regarding incoming flights: 
"the EU ETS allows it to take into account me asures adopted by third countries in relation to 
incoming flights to the EU with a view to exempti ng them from the system.  Such exemptions would 
follow consultations with these States, and the EU  is ready to engage c onstructively in such 
consultations so as to reach agreement." 
The EC would welcome discussions with Malaysia.  We consider that this exchange would be most 
appropriate in the context of discussions over climate change.  
CHILE I 
 
III. POLÍTICAS Y PRÁCTICAS COMERCIALES, POR MEDIDAS 
(1) M EDIDAS QUE AFECTAN DIRECTAMENTE A LAS IMPORTACIONES  
(viii) Reglamentos técnicos y normas 
Durante el último Examen de la UE, algunos Miembros afirmaron que las prácticas de reglamentación 
de la Unión Europea y sus reglamentos técnicos y pr ocedimientos de evaluaci ón de la conformidad se 
han convertido en factores determinantes cada vez m ás importantes del acceso al mercado de la UE, WT/TPR/M/248/Add.1 
Page 409 
 
 
  creando algunas veces obstáculos innecesario s al comercio.65  En su respuesta, la UE indicó que sus 
reglamentos tenían objetivos legítimos, estaban su jetos a una exhaustiva evaluación del impacto, se 
elaboraban con arreglo a un proceso transparente  que daba amplias oportunidades a las partes 
interesadas de los demás Miembros de la OMC para  participar y exponer sus opiniones, y se basaban 
en gran medida en las normas internacionales per tinentes.  La UE reconoció que el número de 
prescripciones reglamentarias había aumentado en al gunos ámbitos, pero señaló que ello se debía a 
los progresos científicos y la identificación de nuev os riesgos.  Además, la UE indicó que prestaba 
asistencia técnica a los países en desarrollo  para ayudarles a cumplir las prescripciones 
reglamentarias.  Question 1 
Cuando la UE menciona que presta asistencia técn ica a los países en desarrollo para ayudarles a 
cumplir las prescripciones reglamentarias, esto ¿incl uye por ejemplo asistencia técnica en materias de 
evaluaciones de impacto, es decir, para que los países logren desarrollar este tipo de metodologías 
para sus regulaciones en general? ¿Cómo se lleva  a cabo dicha solicitud de asistencia técnica? 
 
Answer 
With regards to Latin American countries, the EU development cooperation activities are carried out, 
at a bilateral level, within the framework of the Regulation (EC) No 1905/2006 of the European 
Parliament and of the Council of 18 December 2006 establishing a financing instrument for development cooperation, which main ob jective is the fight against poverty. 
 
Sub-regional organisations (CAN – Comunidad A ndina de Naciones, Mercosur – Mercado Común 
del Sur as well as SICA –Sistema de Integración de Centroameric a) have benefited the most from 
EU's assistance in the field of technical standards. Cooperation in the field of technical standards has 
included a number of projects, ranging from trade related technical assistance (TRTA), sanitary and 
phyto-sanitary standards to customs cooperation. 
 Details on the EU's bilateral cooperation w ith Latin American countries and sub-regional 
organisations are spelled out in the Country/Regional  Strategy Papers, which are publicly available 
on the website the European External Action Service (http://eeas.europa.eu/). 
 Entre octubre de 2008 y mediados de enero de 2011, la UE notificó a la OMC 146 reglamentos 
técnicos y procedimientos de evaluación de la c onformidad (28 en 2008, 63 en 2009, 50 en 2010 y 5 
en 2011).  Las notificaciones abarcan productos tales como aparatos electrodomésticos, equipo 
eléctrico y electrónico, maquinaria, vehículos auto móviles y sus piezas, combustibles, materiales de 
construcción, aparatos de medición, textiles y prendas de vestir, productos químicos, abonos, 
productos alimenticios, agua, vino, vitaminas y mi nerales, cosméticos, productos derivados de las 
focas y plantas modificadas genéticamente.  Normalme nte, en las notificaciones se establece un plazo 
de 60 días, como mínimo, para formular observaci ones, y se propone una fecha de adopción tras el 
vencimiento de ese plazo.  Durante el período objeto de examen, la UE presentó un gran número de adiciones en las que se facilitó nueva información sobr e la adopción, entrada en vigor y contenido del 
texto final de medidas OTC notificadas con anterioridad. 
 
Question 2 
La definición de cuánto establecer como plazo pa ra comentarios de los proyectos de reglamentos 
técnicos o procedimientos de evaluación de la conf ormidad que son notificados a la OMC, entre otros 
aspectos, así como la evaluación de impacto asociada ¿está indicada en algún instrumento legal de la 
Comunidad? ¿Cómo está legislado? 
 
                                                      
65 Documento WT/TPR/M/214 de la  OMC, de 8 de junio de 2009.  WT/TPR/M/248/Add.1 
Page 410  
 
 Answer 
The comment period given to other WTO Membe rs on notifications submitted by the EU is not 
established in a legal document. The EU decid es on a case-by-case basis how much time can be 
allowed in light of the applicable legislative proce dure.  The EU follows the Recommendation of the 
TBT Committee to provide for a comment period of 60 da ys or, if possible, 90 days.  As pointed out in 
the Report by the Secretariat, the EU notifications normally specify a comment period of at least 60 
days, and a proposed date of adoption after the expiry of the comment period.   
 
Impact assessment is a cornerstone of the EU's Be tter Regulation policy, launched in 2002, whose 
main features are outlined in a number of Co mmission Communications to the Council and the 
European Parliament (see further at:  http ://ec.europa.eu/governance /better_regulation 
/index_en.htm).  The Better Regulation policy aims  at simplifying and improving existing regulation, 
better designing new regulation and reinforcing the resp ect and the effectiveness of the rules, in line 
with the proportionality principle enshrined in Ar ticle 5 of the Treaty on European Union and its 
Protocol 2 on the application of the princi ples of subsidiarity and proportionality.  
 
Impact assessments are prepared for: 
 legislative proposals which have significant  economic, social and environmental impacts; 
 non-legislative initiatives  which define future policies;  
 certain implementing measures adopted by the Commission on the basis of implementing 
powers conferred by means of an EU act which are likely to have significant impacts.  
 
For an overview of the legislati ve initiatives scheduled for adoption at EU level for 2011 and those 
planned for the period 2012-2014 that will under go impact assessment,  please refer to the 
Commission Work Programme 2011 and its Annexes, available at: http://ec.europa.eu/atwork/progr ammes/index_en.htm. Further details about the planned impact 
assessment work are given in Roadmaps that are regularly updated an d are available on the 
Commission's thematic website on impact assessment , to which general reference is made for 
additional information:  http://ec.eu ropa.eu/governance/impact/index_en.htm. 
 
En el contexto de su Examen anterior, la UE af irmó que su legislación se basa en la declaración de 
conformidad del proveedor respecto de una "parte importante" de lo s productos comercializados en la 
UE.
66  Algunos de los productos para los que se ex ige la declaración de conformidad del proveedor 
son artículos eléctricos y electrónicos, productos re lacionados con la energía sujetos a requisitos de 
diseño ecológico, equipo de radio y telecomunicaciones,  la mayor parte de la maquinaria, juguetes, 
aparatos de refrigeración, y algunas categorías de  equipo de presión, equipo de protección personal, 
embarcaciones de recreo y aparatos médicos.  Adem ás, la declaración de c onformidad del proveedor 
se utiliza en el caso de productos que, al no haber una legislación sobre seguridad más específica a 
nivel de la UE, están sujetos a la Directiva re lativa a la seguridad general de los productos.67  Entre 
esos productos figuran los artículos para guarderí as infantiles, los textiles y otros productos de 
consumo.  En el caso de productos considerados  de alto riesgo se utiliza la evaluación de la 
conformidad de terceros, llevada a cabo por "organismos notifi cados", es decir, organismos de 
certificación, inspección y prueba designados por  los Estados miembros para llevar a cabo 
determinadas actividades de evaluación de la conf ormidad previstas en la legislación sobre productos 
de la UE.  La designación de organismos notif icados por los Estados miembros requiere una 
evaluación técnica, generalmente basada en la acred itación, y una decisión política en virtud de la cual 
los Estados miembros asumen la responsabilidad de l funcionamiento y la su pervisión del organismo 
                                                      
66 Documento WT/TPR/M/214/Add.1 de la OMC, de 2 de julio de 2009. 
67 Directiva 2001/95/EC del Parlamento Europeo y del Consejo, de 3 de diciembre de 2001 (DO L 11, 
15 de enero de 2002). WT/TPR/M/248/Add.1 
Page 411 
 
 
  notificado68  Los órganos de evaluación de la conformidad no establecidos en la UE no pueden 
habilitarse como organismos notificados.  
Question 3 
 ¿Es posible tener el listado de productos considerados de "alto  riesgo" y que están sujetos a 
conformidad de terceros (" organismos notificados")? 
 
Answer 
The products subject to third-party conformity a ssessment in the EU are t hose deemed to present a 
significant safety, health or environmental risk.  In general, the type of conformity assessment 
procedure to be applied is related to the risks of  products in relation to their intended use.  
Under the scope of the EU's New Approach legisl ation, such products include e.g. structural 
construction products, lifts, cablewa ys, measuring instruments, non-aut omatic weighing instruments, 
explosives for civil uses, pyrotechnic articles, so me categories of equipment for use in explosive 
atmospheres, the majority of p ressure vessels and equipment, gas app liances, some medical devices, 
active implantable medical devices, some types of personal protective equipment, certain types of 
machinery for which harmonized standards covering all relevant risks do not yet exist or have not 
been fully applied by the manufacturer, certain ty pes of toys (same criteria as for machinery).  
Specific type-approval procedu res exist for motor vehicles.  
 As mentioned in para. 85 (p. 51) of Chapter III of  the Report by the Secretariat, the requirements 
relating to technical regulations and conformity assessment proce dures harmonized at EU level are 
listed by sector in the Export Helpdesk website of the Commission.
69  In addition, an overview of EU 
legislation relating to various industrial produc t areas is available on the website of the 
Commission's Directorate-Genera l for Enterprise and Industry.70 
Finally, all Notified Bodies operating under the EU's  New Approach legislation are listed in the 
Nando (New Approach Notified and Designated Organisa tions) Information System, accessible at: 
http://ec.europa.eu/enterprise/newapproach/nando/ .  The data base contains multiple search 
functions by directive, country, etc. 
 
IV. EVOLUCIÓN EN DETERMINADOS SECTORES 
(2) C OMERCIO DE SERVICIOS  
(iii) Transporte 
(d) Transporte Aéreo 
En conjunto, la UE y los Estados Unidos represen tan aproximadamente el 60 por ciento del mercado 
mundial de servicios de aviación, por lo que se ha  estimado que la supresión de todos los obstáculos 
entre ambas partes podría crear hasta 80.000 nuevo s puestos de trabajo y redundar en beneficios 
económicos por valor de unos 12.0 00 millones de euros.  El 24 de junio de 2010 se firmó un acuerdo 
ampliado de "cielos abiertos" entre la  Unión Europea y los Estados Unidos.71  El nuevo acuerdo 
refuerza la cooperación en materia de seguridad  y medio ambiente, y armoniza las normas sobre 
emisiones, combustibles y nivel de  ruidos de las aeronaves.  El Comité Conjunto se reúne, como 
mínimo, una vez al año para examinar la aplicaci ón del acuerdo, incluidos los avances hacia los 
cambios legislativos previstos en el mismo.  Además, el Comité Conjunto puede examinar las 
repercusiones de la adhesión de  terceros países al acuerdo y elaborar propuestas a ese respecto. 
                                                      
68 Documento G/TBT/M/51 de la OMC, del 1º de octubre de 2010. 
69 Export Helpdesk online information.  Viewed at:  http://exporthelp.europa.eu/index_en.html. 
70 See, for example:  http://ec.europa .eu/enterprise/sectors/index_en.htm. 
71 El primer acuerdo de cielos abiertos entre la UE y los Estados Unidos se firmó en abril de 2007 y 
entró en vigor en 2008. WT/TPR/M/248/Add.1 
Page 412  
 
 Question 4. 
¿El Acuerdo Ampliado de cielos abiertos que entr e la UE y EE.UU contempla mecanismos para que 
terceros países puedan adherir al  mismo o cada país deberá negocia r un Acuerdo bilateral con la UE? 
 ¿Qué requisitos deben cumplir los países para adhe rir y/o negociar un Acuerdo de "cielos abiertos"? 
¿Existen normas que ya haya establecido el com ité mixto? ¿Cómo se relaciona esta Cooperación en 
materia de medio ambiente con el próximo inicio de  la aplicación efectiva del EU-ETS en el sector de 
la aviación?  
Answer 
In accordance with Article 18.5 of the EU-US Air Transport Agreement, the Joint Committee can 
examine proposals for the accession to the Agreement of third countries.  The Joint Committee may 
make proposals, which must then be approved and adopted by the Parties.  The Joint Committee has 
in fact proposed amendments to the Agreement in  the event of accession of new Member States to the 
European Union, as well as for the accession to the Agreement of Norway and Iceland, States parties 
to the Agreement on the European Economic Area (EEA).  The Joint Committee has not set out 
proposals of a general nature concerning the partici pation of third countries, and each case would be 
examined individually. Article 15 of the Agreement, modified by a Protocol  signed in June 2010, establishes the basis for 
cooperation in environmental matters, and gives th e Joint Committee an important task in dealing 
with questions concerning the reduction of the impact of  aviation on the environment, as in the case of 
the EU ETS scheme. 
 
La ampliación de los beneficios del mercado único de la aviación a otros países es uno de los 
principales objetivos de la UE, y se basa en tres pila res:  i) la actualización de los acuerdos bilaterales 
de los Estados miembros para garantizar la segurid ad jurídica y poner todas las líneas aéreas de la UE 
en igualdad de condiciones en lo que se refiere a los vuelos dirigidos a países no pertenecientes a la 
UE;  ii) el establecimiento de una zona común de  aviación con los países vecinos del Mediterráneo y 
la región sudoriental72;  y iii) el establecimiento de  zonas de aviación abiertas con otros interlocutores 
internacionales, por ejemplo el Canadá, el Brasil, China, la India, Australia, Nueva Zelandia y Chile. 
 
Question 5 
¿Existe algún grado de avance en el establecimiento de las zonas de aviación abiertas mencionadas en 
el punto 7.iii)?; ¿existen negociaciones activas en cu rso o finalizadas recientemente en ese sentido? 
 
Answer 
The EU has signed or will sign in the near futu re air transport agreements (global agreements as 
contemplated under point 7.iii above) with the US, Canada and Brazil. M andates have been granted 
for negotiations with Australia and New Zealand.  
                                                      
72 En junio de 2006 se firmó un acuerdo sobre la creación de una Zona Europea Común de Aviación 
(ZECA).  Los interlocutores no pertenecientes a las CE  (Albania, Bosnia y Herzegovina, Croacia, la ex 
República Yugoslava de Macedonia, Montenegro, Serbia , la Misión de Administr ación Provisional de las 
Naciones Unidas en Kosovo (UNMIK),  Islandia y Noruega) adoptarán las le yes y los reglamentos comunitarios 
de transporte aéreo, y el transporte  aéreo entre la UE y sus interloc utores de la ZECA se liberalizará 
gradualmente.  Los interlocutores de la ZECA aplicarán íntegramente las normas de aviación de la UE y las 
líneas aéreas de la ZECA tendrán el acceso abierto al me rcado único ampliado de la UE.  Además, la UE ha 
firmado acuerdos sobre transporte aéreo  con Marruecos (2006), Georgia (2010) y Jordania (2010), al tiempo que 
continúan las negociaciones con Israel, el Líbano y Ucrania (febrero de 2011) (Comisión Europea, 2011).  La 
Comisión trabaja también en la actualización de los acuerdos  bilaterales sobre servicios de transporte aéreo para 
ponerlos en conformidad con las leyes de la UE, en partic ular para incluir la aceptación por terceros países de la 
noción de designación de la UE. WT/TPR/M/248/Add.1 
Page 413 
 
 
  CHILE II 
 
Question 6 
En la página 106, números 251 y siguientes se señalan  los distintos cuerpos normativos en virtud del 
cual se protegen las indicaciones geográficas. 
En este sentido no gustaría saber: 
¿cuál es el valor legal de las bases de datos denominadas E-SPIRITS e E-BACCHUS y cuál es su relación con los reglamentos señalados? Y  
Answer 
"E-Bacchus" is a database which,  
• consists of the Register of designations of origin  and geographical indications protected in the EU 
in accordance with Council Regulation (EC) No 1234/2007, • lists non-EU countries' geographical indications and names of origin protected in the EU in 
accordance with bilateral agreements on trade in  wine concluded between the EU and the non-EU 
countries' concerned, 
• lists the traditional terms protected in the EU  in accordance with Council Regulation (EC) No 
1234/2007. "E-Spirits" is a database on geographical indicatio ns protected in the European Union for spirits 
originating in the Member States and third countries.  Spirits GIs are listed in Annex 3 to Regulation (EC) 110/2008. 
 
Question 7 
¿Dónde o en qué bases de datos se encuentran re flejadas las indicaciones geográficas reconocidas y 
protegidas en los distintos Acuerdos de Asociación y/o Acuerdos de Libre Comercio suscritos entre la 
UE y otros países?. 
 
Answer  
This information is published in the Official J ournal and publicly available on the Commission's 
relevant websites, in particular the Treaties O ffice Database and, more sp ecifically for wines, 
http://ec.europa.eu/agriculture/markets/wine/third /index_en.htm.  These websites are continuously 
updated.  
 
INDIA I 
 Secretariat Report (WT/TPR/S/248)  
 
Page 10, paragraph 26 and Table 1.1 
EU is the biggest supplier of services in the wo rld. Other Business Services constitute the single 
largest component of the trade in services of EU.  
Question 1 
Can EU provide the break-up of the "Other business services"?  
Answer 
According to Eurostat the break-down of  "Other business services" is as follows: 
 WT/TPR/M/248/Add.1 
Page 414  
 
 Trade in Other business services, 2007-09 - % of total services exports/imports 
 EU-27 exports EU-27 imports 
 2007 2008 2009 2007 2008 2009 
Other business services,  28.5 29.1 30.8 25.7 26.2 27.9 
   Merchanting and other trade-rela ted services 6.8 6.4 6.7 4.2 3.6 3.5 
   Merchanting and othe r trade-related services, 
Merchanting 5.3 5.2 5.5 0.0 - - 
   Merchanting and other tr ade-related services, Other 
trade-related services 1.4 1.2 1.2 4.2 3.6 3.5 
   Operational leasing services 1.3 1.2 1.3 1.6 1.5 1.4 
   Miscellaneous business,  professional and technical 
services 20.4 21.5 22.8 19.9 21.1 23.0 
   Miscellaneous business,  professional and technical 
services, Legal, accounting,  management and public 
relations services 4.0 4.0 4.2 3.6 3.7 3.9 
   Miscellaneous business,  professional and technical 
services, Advertising, market  research and public opinion 
polling 1.5 1.5 1.6 2.4 2.8 2.9 
   Miscellaneous business,  professional and technical 
services, Research and development services 3.2 3.3 3.5 3.6 4.0 4.3 
   Miscellaneous business,  professional and technical 
services, Architectural, engi neering and other technical 
consultancy 3.7 4.0 4.3 2.0 1.8 2.0 
   Miscellaneous business,  professional and technical 
services, Agricultural, mining , and on-site processing 0.9 1.0 0.9 0.3 0.3 0.3 
   Miscellaneous business,  professional and technical 
services, Other miscellaneous business, professional and 
technical services 3.8 3.3 3.1 4.5 4.2 4.7 
   Miscellaneous business,  professional and technical 
services, Services between a ffiliated enterprises, n.i.e. 3.4 4.2 5.0 3.4 4.2 5.0 
 
Page 16, paragraph 13 
The entry into of the force of the Lisbon Treaty 2009 brought about major changes to the legal and 
institutional framework for EU trade and investment policy.  For entering into the free trade area with other countries it requires the ratification of the EU  as well from the respective national parliaments. 
The European Commissioner for Trade has point ed towards the possibility of the European 
Parliament exercising "parliamentary scrutiny over these agreements".  Question 2 
Can EU please explain their exact position on the i ssue of ratification requirement of the free trade 
agreements with other trading partners?  
Answer   
The ratification of agreements in the EU re quires the Council to authorize the signature and 
conclusion of the agreement.  Once an agreement is  signed, the European Parliament must give its 
consent before the agreement is concluded.  If  not all matters of an agreement fall under EU 
competence then ratification by the Member States will also be required. 
 
Page 32, paragraph 19 
From October 2010 compulsory origin marking for certain industrial products  imported from non-EU 
countries except Iceland, Liechtenstein, Norway, Switzerland, and Turkey. 
 WT/TPR/M/248/Add.1 
Page 415 
 
 
  Question 3 
We would appreciate if EU could clarify the grounds  on which this labelling re quirement are justified 
keeping in mind Article I of GATT, 1994 EU provides for compulsory origin marking requirement for all non-EU counties except five (viz. Iceland, Li echtenstein, Norway, Switzerland, and Turkey)? 
 Answer   
The proposed scheme would not apply to a limite d number of non-EU countries (Turkey and the 
contracting parties of the EEA Agreement) owing to  the existing agreements between the EU and the 
relevant Parties.  According to the WTO rules (in particular Article  XXIV:5 GATT 1994), there may be derogations to 
GATT rules for the purpose of customs unions or free trade areas.  
Page 33, paragraph 26 
A new self-certification system, the Registered Exporter System (REX), requiring GSP beneficiary 
countries to set up an electronic record of registered exporters and transmit it to the European 
Commission. 
 
Question 4 
As per the new system the GSP beneficiaries will ha ve to set up REX systems.  India requests EU for 
more details about the require ments and operation under REX System.  Will EU also consider 
technical assistance support for such developing countries which are not in a position to establish 
REX System on their own ? 
 
Answer 
REX  is a system of self-certification of origin of goods that will allow exporters of goods to make out 
proofs of origin, called statements on origin, them selves.  This system will replace certification of 
origin of goods by the competent authorities of GSP beneficiary countries.  However, to be allowed to 
do so exporters will have to undergo a registra tion process with the competent governmental 
authorities of the country of exportation.  For this  purpose, each EU's GSP beneficiary country will 
communicate to the European Commission data on exporters specified in the applicable EU 
legislation.  The list of registered exporters will be accessible online.  The system will be operational 
from 2017 onwards, with the possibility to postp one its implementation until 1 January 2020 at the 
latest for beneficiary countries which will not be  in a position to implement REX on 1 January 2017. 
It is important to note that exporters exporting any consignment of one or more packages containing 
originating products, where the total value of th e originating products c onsigned does not exceed 
EUR 6 000, do not have to be registered in the system  to  be able to make out statements on origin 
themselves.  
The competent authorities of beneficiary countries will be required to carry out necessary measures 
related to control of origin, which shall ensure the continued compliance of exporters with their 
obligations. The system's architecture is curr ently under elaboration, thus technical details thereof are not yet 
available. Before the implementation deadline the European Co mmission will examine the state of readiness of 
beneficiary countries to ensure smooth and uninterr upted functioning of the registered exporter 
system.  Possible recommendations in this regard may be considered at a later stage. 
 Page 40, paragraph 54 
The adoption of AD and CV measures is subject to the new comitology rules that entered into force in 
March 2011.  In March 2011, the Commission issued  a legislative proposal adapting several trade 
regulations, including on AD and CV duties, to the new comitology rules.  The Commission's proposal must be adopted by the Parliament an d the Council in accordance with the ordinary 
legislative procedure.  WT/TPR/M/248/Add.1 
Page 416  
 
 Question 5 
Can EU kindly clarify the time frame for the adoption of these rules by its members? 
 
Answer  
In practice Regulation (EU) No 18 2/2011 laying down the rules and general principles concerning 
mechanisms for control by Member States of the Commission's exercise of implementing powers ("the 
Comitology Regulation") has shifted the power for adopting implementing acts (such as the adoption 
of definitive AD and CV measures) from the Council to the European Commission.  That means that 
trade remedy investigations will s till be conducted by the Commission but  that trade remedy measures 
will be applied by the Commission instead of the Council.  However, the Comitology Regulation 
foresees that the Commission's exercise of implemen ting powers will be subject to control by the 
Member States through its Article 8 for provisional  measures and through the examination procedure 
for definitive measures.   In order to align the basic anti-dumping and anti-s ubsidy Regulations to the Comitology Regulation, 
the Commission has made a proposal to the European Parliament and Council (the co-legislators) on 
7 March 2011 for a Regulation amending certain re gulations relating to the common commercial 
policy as regards the procedures for the adoptio n of certain measures (COM(2011) 82 final of 
7.3.2011, 2011/0039 (COD)) ("th e Omnibus proposal").  Until the co-legislators adopt the Omnibus 
proposal, trade remedy measures will continue to be  applied by the Council.  The discussions within 
the co-legislators are still at an early phase and therefore it is not yet clear when the Omnibus 
proposal will be adopted.  
Page 43, paragraph 67 
The EU maintains import surveillance schemes for certain steel products regardless of origin.  
According to the EU reply import surveillance schem es seek to improve the "transparency of import 
trends", and are not intended to limit market acce ss.  The surveillance scheme on imports of certain 
steel products is administered through automatic licensing; set up in 2002, its duration has been 
prolonged until end-2012.  
Question 6 
We would appreciate if EU could clarify the reas ons for  extending to the surveillance scheme on 
certain steel products to end-2012? 
Does the EU envisage termination of this scheme after its current duration?  
Answer 
By Regulation (EC) No 76/2002 the Commission in troduced prior Community surveillance of imports  
of certain iron and steel products originating in thir d countries.  This regulation was last extended by 
the Commission Regulation (EU) No 1241/2 009 of 16 December 2009 and shall run until 
31 December 2012. This steel import licence mechanism  gives an early indication of the steel import 
flows into the EU in the following months.  The licence is free and automatic and does in no way 
constitute a limitation to market acce ss.  This has been confirmed by  the smooth running of the system 
since its start in 2002.  The analysis for the need to continue the system beyond end 2012 has not yet 
been made.  Monthly reports of steel volumes licensed by region of or igin and product group are 
published on the DG Trade website. This surveillance mechanism is deem ed to be necessary due to continuous volatility of the global steel 
markets and shifts in steel trade flows in particular in  terms of an economic crises.  While it is true 
that the unprecedented slump of the steel market in 2009 has been somewhat compensated by more 
favourable developments in 2010 and 2011, there are still considerable uncertainties in the market on 
top of some significant trade flow shifts and chang es in the raw material supply.  Developments 
related to the major steel producing counties such as China, Russia, Ukraine and Turkey have 
significant potential in this respect.  Therefore, th e EU does not consider it appropriate to end this WT/TPR/M/248/Add.1 
Page 417 
 
 
  transparency instrument earlier than anticipated.  There are no specific rules for defining the length 
of the limited period.  
 
Page 55, paragraph 98 
The European Union and each of its member St ates have notified enquiry points under the SPS 
Agreement.  The Directorate General for Health and Consumers of the European Commission is the 
EU notification authority.  Member States are members of the Codex Alimentarius Commission, the World Organization for Animal Health (OIE), a nd the International Plant Protection Convention 
(IPPC).  The EU is a member of Codex and the IPPC.  Question 7 
The EU is requested to provide an answer to the following questions:- 
what is the process through which it ensures the ex istence of commonality in the standard/regulation 
within the custom union? if such commonality is not ensured, how much of a divergence is there between the member states on 
such matters? 
 
Answer 
There are comprehensive reports available on th e transposition, implementation and enforcement 
(TIE) of Union law in the EU Member States.  All Union legislation and enforcement measures are 
drawn up in close co-operation with the Member States and generally require their opinion.  This 
includes regular meetings to overs ee this process.  This is all carried out in a transparent manner 
with the agendas and reports of m eetings publicly available on the internet. Union legislation as a 
general rule does establish target dates for the tr ansposition and implementa tion of measures.  The 
SPS Agreement is part of the "acquis communitaire" .  Each EU Member State is responsible for the 
implementation of Union law within its own legal system. Under the Treaties (Article 258 of the 
Treaty of the Functioning of the EU, ex Article 226 EC Treaty), the European Commission is 
responsible for ensuring that Union law is corr ectly applied. Consequently, where a Member State  
fails to comply with Union law, the Commission has powers of its own to try to bring the infringement 
to an end and, where necessary, may refer the case to  the Court of Justice of the European Union.  
The Commission takes whatever action it deems appropr iate in response to either a complaint or 
indications of infringements which it detects itse lf.  Non-compliance means failure by a Member State 
to fulfil its obligations under Union law.  It ma y consist either of action or omission. See at:  
http://ec.europa.eu/eu_law/infringe ments/infringements_en.htm  
 
Page 55, paragraph 99 
The EU considers that, of the 35 notified measure s for which there was a relevant international 
standard, 27 conformed to that international standard.   
 
Question 8 
EU is requested to give an answer as to why inte rnational standards are not adopted while applying 
SPS measures.  And if a measure deviates from interna tional standards, is such a measure put through 
the scrutiny of proper scientific justification. 
 
Answer 
EU measures are where possible based on relevant international standards.  However, in some cases 
there are no such standards and the EU has therefore to rely on standards developed at the Union level.  These are no more trade restrictive than n ecessary and third countries should recall that they 
apply both to trade within the EU and to im ports from third countries in a non-discriminatory 
manner.  The EU fully supports the activities of  the international standard setting bodies, notably the 
OIE/CODEX/IPPC, in order to provide a compreh ensive framework of standards at the multilateral 
level. WT/TPR/M/248/Add.1 
Page 418  
 
 For a full study on the few EU SPS measures not in compliance with CODEX standards, please see 
the communication G/SPS/GEN/1044 (8 October 2010)  "EU Notification Authority and Enquiry Point 
for the SPS Agreement:  Experien ce after the revision of the Trans parency Guidelines of December 
2008:  Workshop on the Transparency Provisions of the SPS Agreement - Geneva, 19 and 22 October 
2010 - Reflection Note", Annex II, page 7.  The EU is the only WTO member which has published 
such a complete review of its deviations of the international standards, given a full explanation of the 
scientific reasoning behind the decision. 
 
Page 58, paragraph 112 
In addition to being entered in th e relevant list, countries seeking to export animals and products of 
animal origin to the EU must obtain approval for their residues monitoring programme. The 
Commission has published guidance on the criteria for these approvals. However, there are no statutory limitations regarding the duration of the pr ocess to approve first-time imports of live animals 
and products of animal origin.  Question 9 
It is noted that absence of statutory time limits in giving approvals to first tim e imports of live animals 
can result in long delays in such approvals which will constitute a barrier to trade. Does EU propose a 
statutory time limitation for according approvals to such imports?  
Answer 
The time for the approval of first-time imports of liv e animals and products of animal origin from a 
certain third country is dependent on the co-op eration and performance of the third country 
concerned.  If the information a sked for in the Genera l Guidance on EU import and transit rules for 
live animals and animal products from third countries (see at: 
http://ec.europa.eu/food/international/trade/guide _thirdcountries2009_en.pdf ) is made available 
rapidly and completed to the Commissions services,  the Commission inspection service of the Health 
and Consumers Directorate General, DG SANCO (FVO - Food and Veterinary Office located in 
Grange - Ireland)  can carry out an inspection in the third country concerned rapidly.  If the 
information provided is incomplete, the FVO need s to ask for clarification and completion of the 
information until an inspection can be planned.  Th e outcome of the inspection in the third country 
concerned can influence the time fo r listing the relevant third country for a specific commodity as 
well.  This time period would be shorter, if no shortcomings are found during the inspection than in 
case of when short comings are found.  In addition, the interested third country needs to send its residues control programme to the FVO, 
which will evaluate the programme and if necessary a sk more detailed information or clarifications 
from the third country concerned 
 
Page – 70, paragraph – 164 
In paragraph 164 it has been stated that "in general, EU member States must notify the Commission, 
and obtain its authorization, before granting state aid.  State aid eligible under the General Block 
Exemption Regulation, which entered into force in  August 2008, is not subject to prior notification 
and scrutiny.  Neither is de minimis support (€ 200,000 or less per company over a period of three 
years).  Nearly €11 billion was awarded on th e basis of block exemptions in 2009." 
 
Question 10 
(i) Can the EU provide details of €11 billion that was awarded on th e basis of block exemptions 
in 2009, disaggregated in goods and services?  
(ii) Can the EU indicate the major sectors which ha ve benefited from block exemptions in 2009 
and the respective amount of state aid received by each major sector? 
(iii) Can the EU confirm that all disbursements of state aid on goods have been notified to the 
Subsidies Committee? 
 WT/TPR/M/248/Add.1 
Page 419 
 
 
  Answer  
(i) A disaggregation in goods and services is not possible.  Many schemes have been open to all 
sectors for which Member States have to pr ovide only one figure on expenditure. 
(ii) For the same reason as given in (i), an indication on which major sectors have received such 
type of aid is not possible.  
(iii) The EU fully complies with the notificati on obligations under Article 25 of the SCM 
Agreement and is in fact currently in the process of  finalizing the submission in relation to the years 
2009 and 2010.  In preparing such notifications , the EU makes every effort to achieve the maximum 
transparency with regard to all aid and suppor t measures granted within its territory. 
 
Page 71, paragraph 168 
State aid provided by member States totalled appr oximately €427 billion in 2 009, or 3.6% of EU-27 
GDP.  On average, member States granted a pproximately €268 billion per year between 2007 and 
2009, roughly three-and-a-half times the average for 2004-06.    Question 11 
Can the EU provide details of state ai d received by various sectors in 2009? 
 
Answer 
An indication by sector is not possible.  Many schemes have been open to all sectors for which 
Member States have to provide only one figure on expenditure. 
 
Page 75, paragraph 178 
The temporary framework opened up new possibilities for member States to provide assistance to 
firms in the form of:  grants of up to €500,000 per firm for investments or working capital ("500k 
measure");  subsidized loans and subsidized guarantees;  and aid for the production of "green" 
products. 
 
Question 12 
Can the EU provide details of total disbursement s under the temporary framework by each member 
state and by product category? Can the EU provide details of the difference in rate of interest applicable on subsidised loans and the 
comparable market rate of interest? 
 
Answer 
An indication by sector is not possible. Aid gr anted under the Temporary Fr amework also comprise 
schemes open to all sectors and for which Memb er States have to provide only one figure on 
expenditure. 
 It is also not possible to provide a single figure considering that the Temporary Framework provided 
a new methodology that needs to be applied to each particular case.  The subsidized interest rate was 
calculated on the basis of the Central Bank overni ght rate, instead of the one year interbank offered 
rate (which is the reference contained in th e Commission Communication for setting the reference 
and discount rates). 
 The rate could be at least equal to the Central Bank overnight rate plus a premium equal to the 
difference between the average one year IBOR and th e average of the central bank overnight rate 
over the period from 1 January 2007 to 30 June 2008 (pre-crisis), plus the credit risk premium 
corresponding to the risk profile of the recipient.  The aid element was calculated as the difference WT/TPR/M/248/Add.1 
Page 420  
 
 between the applicable interest rate and the reference rate
73.  The schemes could cover loans of any 
duration, but the reduced interest payments could be applied for payments only before 
31 December 2012, any interest rate after that date should be market conform. 
 
Page 80, paragraph 193 
EU's notification of government procurement duri ng 2007   (GPA/94/Add.4) does not contain details 
of procurement by various member states from differe nt countries. However, similar notifications for 
previous years contain details of procurement fro m different countries by product/ service code. This 
information has been provided in respect of  each procuring entity in a member state. 
 Question 13 
Could the EU provide reasons why its notifica tion GPA/94/Add.4 does not include details of 
procurement by various member states from differe nt countries, although similar notifications for 
previous years gave details of the value of procurement from different countries?  Answer 
Article XIX (5) does not expressly require providing those figures per Member State and so far the 
Committee has not defined the repor ting requirements in this area. 
 
Page 80, paragraph 193 
Although it is difficult to identify the exact nati onality of successful suppliers/service providers, the 
Commission started to establish a methodology to monitor cross-border procurement, including from 
non-EU origin.  The authorities provide that, in 2007 (t he latest year for which data are available), 
contracts of a total value of €12 billion (3.3% of to tal above-threshold procurem ent, and 3.9% of total 
procurement open to GPA partners) were awar ded to suppliers originating from non-EU GPA 
signatories.  Question 14 
Could the EU provide details of the methodology established to monitor cross-border procurement, 
including from non-EU origin?  Based on EU's notification for the year 2006, it is calculated (and not estimated) that government procurement from non-EU sources did not exceed 0.3% of above-
threshold procurement.  Can the EU provide reas ons why there was almost ten-fold increase in 
procurement originating from non-EU origin in 2007 compared to the previous year? Is it possible 
that the ten-fold increase was on account of a fl awed methodology established for estimating cross-
border procurement?  
Answer 
Until 2006, the EU relied on data provided by its Me mber States without a predefined methodology. 
In 2007, data on contracts awarded to firms from GPA countries have been identified through a 
thorough analysis of the location of headquarters (rev ised all the contract award notices published in 
TED).  As a result, data for 2007 is reliable.  Th e EU is ready to discuss a common methodology in 
the context of GPA Committee working programme. 
 
Page 82, paragraph 200 
EU supports more accessions to th e GPA with the intent of making the GPA a multilateral agreement 
in the long term.  Towards this end the EU includes substantial chapters in its  trade agreements with 
developing countries.  
                                                      
73 Communication from the Commission on Temporary framework for State aid measures (OJ C 16, 
22.1.2009, p. 6), section 4.4.2. WT/TPR/M/248/Add.1 
Page 421 
 
 
  Question 15 
EU is requested to indicate whether inclusion of GP Chapters in trade agreements with developing 
countries has increased the share of these countries in the total Government procurement by EU 
members. Similarly, EU may please indicate the extent of incre ase, if any, in the share of EU in the government 
procurement of its trade agreement partners. 
 
Answer 
In its review of the nationality of firms from GPA countries in 2007, the EU has identified several 
contracts awarded to companies of countries w ith whom it has signed a free trade agreement.  
The data that you refer in the second part of your qu estion is not traced in the EU export figures and 
should be actually asked to  the countries in question. 
 
Page 85 Paragraph 213 
Article 101 of the Treaty on the Functioning of the European Union (TFEU) is stated as non-applicable on the insurance sect or and the motor vehicle business 
 
Question 16 
EU is requested to explain the rationale behi nd not covering the insurance sector and the motor 
vehicle business under the provisions of Article 101 of the TFEU.  Answer 
In general, Art 101 TFEU equally applies to th e insurance sector and to the automobile sector. 
However, the prohibition of anticompetitive arra ngements set forth in Article 101(1) TFEU is 
declared inapplicable to certain specific categorie s of agreements between companies.  For the 
insurance sector such block exemption is granted fo r the joint realization of compilations, tables and 
studies and co-(re)insurance pools.  Such a block exem ption regulation for the insurance sector had 
already been adopted in 1992 and was replaced  in 2003.  A new block exemption regulation 
(Regulation 267/2010) which came into force on 1 April 2010 extends, with some amendments, the 
exemption granted to forms of specific cooperation which the Co mmission considers indispensable in  
order for the insurance sector to carry out its  business, including certain forms of exchange of 
information between insurers.  Th e motor vehicle block exemption al so provides such a necessary safe 
harbour by exempting a whole category of motor veh icle distribution and repair agreements from the 
prohibition laid down in Article 101(1).  For bot h block exemption regulations, several conditions 
have to be complied with in order to apply the ne w regulation to such agreements, the most important 
being that Agreements can only benefit from the bloc k exemption so long as they do not contain any 
serious restrictions of competition and meet the other conditions laid down by the Regulation . 
 Page 88, paragraph 229 
The IPR regime in the EU is governed both by EU le gislation and legislation in member States.  The 
EU is an observer to the World Intellectual Prope rty Organization (WIPO), while its member States 
are WIPO members.  In December 2009, the EU ratified the WIPO Copyright Treaty and the WIPO 
Performances and Phonograms Treaty. 
 
Question 17 
Have the obligation under WCT and WPPT been impl emented EU wide? Further, does EU intend to 
have a single-window system of licensing of copyright works, especially digital works?  Answer 
Yes, the provisions of the 1996 WIPO Internet T reaties have been implemented EU-wide.  Directive 
2001/29/EC transposed into Community law the main international obligations arising from the WCT 
and WPPT Treaties. WT/TPR/M/248/Add.1 
Page 422  
 
 As regards licensing of copyright, the Commission announced in its Communication of 24 May 2011 
"A Single Market for Intellectual Property Rights" (COM(2011) 287 final)
74 that it will submit 
proposals to create a legal framework for the colle ctive management of copyright to enable multi-
territorial and pan-European licensing.  
 
Page 89, paragraph 232 and 233 
In July 2008, the Commission adopted a proposal to amend Directive 2006/116/EC, i.e., to extend the 
term of protection for performers and producers of  sound recordings, from 50 years to 95 years.  
According to the EU, this extension would bring perfo rmers' protection closer to that given to authors 
(life plus 70 years), and this would not have a negative impact on prices. 
 
Question 18 
The economic rationale for extension of term of protection for copyright works and performances has 
been argued against in the Gowers Report.  Can EU  pleas to explain why the limits were extended to 
such long terms?  Was any prior evaluation done to  gauge the impact of term extension on consumers 
and further creative activity? 
 
Answer 
Before adopting the proposal on extending the te rm of protection for performers and record 
producers, the Commission carried out  a compreh ensive analysis of the topic and summarized the 
findings in The Impact Assessment on the Legal and Economic Situation of Performers and Record 
Producers in the European Union (SEC (2008) 2288 of July 2007)75.  The Gowers report is not the 
only study which has opined on the topic.76  
In short, several empirical studies show that the impa ct of a term extension would not be negative for 
consumers as the price of sound recordings that are ou t of copyright is not necessarily lower than that 
of sound recordings that are still in copyright.  Th is is true in relation to statutory remuneration 
claims and for the sale of CDs. 
 At the same time, currently, performers and record  producers are protected for 50 years from the date 
of the performance or from the publication of th e sound recording, whereas au thors are protected for 
life plus seventy years.
77  The proposal for term extension therefore tries to bring the copyright term 
for performers more in line with that applicable to authors.  Moreover, performers that live longer 
and create younger, have an income gap at the end of their lifetimes.  When the performers' 
copyrights expire they no longer have a say in the use made of thei r performances and they are thus 
exposed to potentially objectionable results which are harmful to their name or reputation.  
 
Page 91, paragraph 237 
The EU is known to have a number of directives to prevent net based copyright piracy and 
infringements. Yet, non-EU foreign parties have comp lained of servers based in EU territory hosting 
their content and offering the same for free and paid download without permission  
                                                      
74 http://ec.europa.eu/internal_market/copyri ght/docs/ipr_strategy/COM_2011_287_en.pdf 
75 http://ec.europa.eu/internal_market/copyright/docs/term/ia_term_en.pdf 
76 Some other studies analyzed we re Liebowitz (February 2006), "Wha t are the Consequences of the 
EU extending Copyright Length for Sound Recordings, report prepared for IFPI.; PriceWaterhouseCoopers 
(April 2006), "The Impact of Copyright Extension for Sound Recordings in the UK", report prepared for BPI. ; Centre for IP and Information Law (2006), "Review of the Economic Evidence Relating to an Extension of the 
Term of Copyright in Sound Recordings", report prepar ed for the Gower's review. For the complete analysis, 
see the impact assessment. 
77 If an author creates a work in his 20s and lives an  average life with a life e xpectancy of 75 for men 
and 81 for women, authors are pr otected for around 130 years.  WT/TPR/M/248/Add.1 
Page 423 
 
 
  Question 19 
EU is requested to elucidate on the redress mechan ism available to non-EU foreign right holders for 
easy action against illegal hosting of infr inging content on EU based servers. 
 
Answer  
Right holders from outside the EU have the same possibilities to take measur es against infringements 
using EU-based servers as EU right holders.  As to th e type of these measures, at the level of the EU, 
Directive 2004/48/EC provides for a toolbox of meas ures that right holders and other persons entitled 
to use their rights (such as licensees) can take agains t infringers of their intellectual property rights. 
In particular, they are entitled to request a court to issue injunctions aimed at preventing any 
imminent infringement of an intellectual property right and/or forbidding the continuation of the 
alleged infringements of that right (under certain c onditions such continuation can be made subject to 
the lodging of guarantees intended to compensate th e right holder).  They can request the recall of 
goods infringing their intellectual property rights and  the removal from the channels of commerce as 
well as a request for damages from the infringer.  Finally, the judicial authority can order that its 
decision confirming the infringement be published. 
Article 2(1) of Directive 2004/48/EC furthermore specifies that the Directive's provisions apply 
without prejudice to the means which are or may be pr ovided for in national legislation, in so far as 
those means may be more favourable for right hold ers.  Additional remedies may therefore be at the 
disposal of right holders, depending on the specific  legislation of the Member State in question. 
 
Page 91, paragraph 238 
France has revised its HADOPI law. It provides for 3-strikes procedure. 
 
Question 20 
Can EU provide the details on how many cases of successful 3-strikes were carried out by the French authorities since 2009? 
 
Answer 
In May 2011, the French authority Hadopi publishe d on its website the resu lts of a survey among 
1.500 internet users, examining the results of th e authority's work.  The report is available at 
http://www.hadopi.fr/download/sites/default/files/page/pdf/t1_etude_longue.pdf.  According to the 
report, 7% of the persons interviewed stated that  they, a family member or a close friend had already 
received a recommendation letter from Hadopi.  Again a ccording to the report, three out of four users 
who had received such a letter afterwards reduced  or stopped downloading IPR infringing material. 
 
Page 96, paragraph 259 
The EU's directive 1383/2003 has been called to question for its ability to strike at goods in transit for 
IP violations. 3.5% of the cases applied to su ch goods which were not destined for the EU. 
 
Question 21 
Does the EU intend to amend the said directive 1383/2003? 
 Answer 
The EU on 24 May 2011 adopted a proposal for a Regul ation of the European Parliament and of the 
Council concerning customs enforcement of intellectual property rights78.  The proposal is now before 
the Council and the European Parliament.  
                                                      
78http://ec.europa.eu/taxation_customs/customs/customs_controls/counterfeit_piracy/legislation/index_
en.htm. 
 WT/TPR/M/248/Add.1 
Page 424  
 
 The EU has paid particular atten tion to addressing the concerns of  some WTO Members concerning 
goods in transit through the EU.  The proposal has notably removed the provisions that had created 
uncertainty in the past (recital 8 of the regulation) , underlining its procedural nature by clarifying 
that it does not introduce any new criterion for a scertaining the existence of an infringement of the 
intellectual property law applicable, and has added a new recital (recital 17) that should ensure a 
smooth flow of generic medicines in transit.  Also , the language in the operative provisions of the 
regulation now follows more closely TRIPS language requiring adequate evidence before customs authorities can detain goods. 
 
Page 96, paragraph 260 
At the external border of the EU, Customs authoriti es may suspend the release of or detain goods that 
are suspected of infringing or found to have infri nged IPRs.  However, Customs may also act ex-
officio if they have sufficient grounds for suspect ing that goods infringe an IPR.  The Customs 
authorities then notify the detention/suspension to the importer and the right holder.  The right holder must submit an application for action within three working days of receiving the notification.  If no 
application is submitted within this  period, the goods are released. 
 
Question 22 
Can EU elucidate about the compensation payable to  the owners of goods which are suspended from 
release through ex-officio action by the Customs au thorities and are later found to be non-infringing? 
 Answer 
The Customs Authorities belong to the Public Admi nistrations of the EU Member States.  Their 
liability for any wrongdoing in the performance of their duties and faculties under the Regulation 
1383/2003 is governed by the law of the EU Me mber States.  Although there could be slight 
differences amongst those legislations, generally speaki ng, the non-contractual liability of the Public 
Administrations of the EU Member States is s ubject to three conditions which are cumulatively 
necessary: the existence of fault, of damage and of  a causal link between the fault and the damage. 
 
Page 110, paragraph 39 
WTO Secretariat Report reveals that EU provides e xport subsidies on many agriculture products. In 
January 2009, export subsidy was reintroduced for dairy products in response to low world price 
which was subsequently removed in October 2009. 
 
Question 23 
India is concerned at the use of export subsidies by EU especially when world prices are low since 
such subsidies distort international trade.  
Can EU state whether it intends to apply a self-impo sed moratorium on such subsidies in future given 
the spirit of the Doha negotiations wherein there h as been an in-principle agreement to eliminate 
export subsidies?  
Answer 
The use of export refunds by the EU is in full compli ance with its WTO obligations.  Their use is in 
fact very limited- less than 1% and 0.5% of exports  of European agricultura l products benefited from 
export refunds in 2009 and 2010 respectively.   The EU remains committed to the conclusion of the DDA negotiations which should lead to the 
parallel elimination of all form s of export subsidies and discipl ines on all export measures with 
equivalent effect, as part of a comprehensive,  ambitious and balanced package under the Single 
Undertaking, including domestic support and mar ket access provisions as established in the 
December 2008 draft modalities, but also TRIPS issues, namely GI register and GI extension. 
 WT/TPR/M/248/Add.1 
Page 425 
 
 
  Page 112, paragraph 43 
WTO Secretariat Report indicates that blue box supp ort have declined since marketing year 2000/01. 
However, within blue box, EU is providing significant support to a few crops especially cotton. For example, the value of cotton production in 200 5-06 was € 1231.2 million and blue box support to 
cotton was €255 million. 
 
Question 24 
India is concerned at the adverse effects of the la rge quantum of subsidy EU gives to cotton sector on 
world cotton prices. India notes with concern that developed countries have tended to maintain huge 
subsidies in favour of their cotton growers whic h severely affects the livelihood of some of the 
poorest economies and people of the world.  Does EU  propose to revisit its subsidy programme in 
cotton in order to reduce the distortions bei ng caused in international trade in cotton? 
 
Answer 
The EU notes India's observation on EU cotton support,  while reminding that the EU share in world 
trade in cotton is marginal at approximately 1% .  The EU has already implemented a far-reaching 
cotton reform since 2006:  the most trade-distortin g subsidies to cotton production have been fully  
eliminated, the EU market for cotton is already duty-free and quota-free, and there are no export subsidies for cotton. 
 
Policy statement by European Union (WT/TPR/G/248)  
 
Page 17, paragraph 77 
The EU has many bilateral agreements with its tr ading partners in which there are substantial IP 
provisions. 
 
Question 25 EU is requested to elaborate on the principles on wh ich these provisions are negotiated, i.e. are they 
based on only EU's economic interests or does the EU have a policy of  taking the level of 
development of the partner into consideration while  determining the contents of these provisions.  
EU is also requested to elucidate whether it also  provides for specific provisions enabling State-to-
State transfer of technology to technology-deficient FTA partners.  Answer 
The EU's FTAs are designed to be benefici al to both sides and create opportunities by: 
 Opening new markets for goods and services  
 Increasing investment opportunities  
 Making trade cheaper - by eliminating substantially all customs duties  
 Making trade faster - by facilitating goods' tr ansit through customs and setting common rules 
on technical and sanitary standards  
 Making the policy environment more predictable - by taking joint commitments on areas that 
affect trade such as intellectual property rights, competition rules and the framework for 
public purchasing decisions  
The EU adapts its strategy to the situation of each partner country.  All the EU's trade agreements in clude a provision on the transfer of technology except for where the 
partner country is of a similar level of economic deve lopment.  The EU reports to the WTO regularly 
about its (the EU Commission and the 27 Member Stat es) technology transfer activities in the world. 
Specific information can be found on the follo wing website:  http://ec.europa.eu/trade/creating-
opportunities/trade-topics/intellectual-p roperty/technology-transfer/. In certain countries, the EU 
faces obstacles to its programme of transfer of t echnology.  These problems are addressed in bilateral 
dialogues with the country concerned in an atte mpt to allow the flow of technology to local 
enterprises that need to benefit from it. WT/TPR/M/248/Add.1 
Page 426  
 
 Page 17, paragraph 78 
EU is one of the original negotiators of the ACTA  which seeks to ensure high level of enforcement of 
IPRs by participating countries 
 
Question 26 
EU may please convey the current state of the ACTA and also the likely  
date of coming into force of the Agreement.  EU is requested to explain as to how, if at a ll, the provisions of the ACTA would apply to non-
members. 
 
Answer 
The ACTA negotiations were concluded at the end of November 2010 and the EU initialled the text  on 
25 November.  The agreement is now in the process of being adopted by the EU.  It was translated (in 
to 23 languages) and adopted by the Commission (Colle ge of Commissioners) on 24 June.  It has now 
been sent to Council for authorizing its signature. After signature it will be sent to the European 
Parliament for consent. 
Constitutionally, it is up to the Council (representi ng the 27 Member States), to approve the signature 
of international treaties and to appoint a representa tive to sign them on behalf of the EU (normally, a 
Minister of the country holding the EU Presidency, i. e. Poland in the 2nd semester of 2011).  It is 
possible that a Council decision is taken in Oct ober/November 2011.  ACTA will also need to be 
signed and ratified by the 27 EU Member States.  
Art 40 of ACTA indicates that the Agreement will ent er into force thirty days after the date of deposit 
of the sixth instrument of ratification, acceptance or approval as between those Signatories that have 
deposited their respective instruments of ratification, a cceptance, or approval.  It is not clear at this 
time when this will be. ACTA is binding only on those countries that sign  and ratify it and does not create legal obligations 
on non-members.  However, the ACTA provisions w ill apply to infringements which take place in the 
territory of a signatory state even if the infringement is  carried out by  an infringer originating from a 
third country not party to ACTA.  INDIA II 
 Regulatory limits on residue levels 
The European Union (EU) has harmonized its p esticides residue level framework under Regulation 
No. 396/2005 on Maximum Residue Levels (MRLs) for pesticides in or on food and feed of plant and 
animal origin.  A default level of 0.01 has been  applied on many chemicals because "the EC has not 
made a specific determination that it is safe".  It is claimed that the MRLs have been set at the Level of Determination. Contemporaneous validation data for the chemicals that set the MRL at the LOD at 
the time of the passing of the legislation is not ava ilable.  Neither the Standard Operating Procedure, 
(SOP) for the test that has been pre validated to SANCO 10684 and associated OECD and ISO 
documents nor any Proficiency tests as demanded by SANCO 10684 have been conducted. Scientific 
evidence to justify the setting of the MRL at LOD and risk assessments has not been provided despite 
substantially higher levels for the same chemic als prescribed by other countries.  In case of 
Isoprothiolane (IPT) in rice, scientific data from Japan has clearly established there is no risk to 
human health even at an MRL of 2 ppm.  Further,  for other products within the EU for the same 
chemical there are different standards e.g. MRLs set for Carbendazim.  As per information available, 
the MRL of Carbendazim on wheat is 10 times that set  for Rice and on Oats it is 200 times that set for 
Rice.    WT/TPR/M/248/Add.1 
Page 427 
 
 
  Question 1 
(i) What is the basis for setting the MRLs for product –chemical combinations at the default level? 
Could the EU provide the scientific justifi cation for the MRLs specified under Regulation 
No. 396/2005. 
(ii) Can the EU provide the legal basis for the valid ated testing procedures in support of the MRLs 
set vide Regulation No. 396/2005 
(iii) Can the EU explain the provisions of the SPS Agreement under which the onus of providing 
scientific evidence for raising MRLs lies on the exporting country? 
(iv) Can the EU consider working together with e xporting countries, including sharing of costs and 
scientific resources, on preparing scientific dossiers for setting MRLs for product-chemical 
combinations of interest to exporting countries. 
 
Answer   
(i) An MRL higher than the default level of 0,01 ppm can only be set provided that: 
- Residue data from supervised residue tria ls are available to derive an MRL;  
- A full toxicological dossier is available to derive an ADI (Acceptable Daily Intake) and an 
ARfD (Acute Reference Dose) to carry out a consumer risk assessment - Based on the residue data and the toxicologi cal endpoint, there is no unacceptable risk to 
EU consumers.  
(ii) Validated analytical methods used by the EU  for the different residues of pesticides can be 
found on the website of the EU Reference Labo ratories for Residues of Pesticides (EURLs) 
(http://www.eurl-pesticides.eu).  
Article 28 of Regulation (EC) No 396/2005 lays down the general rules for the methods of analysis of 
pesticide residues.  The mentioned docume nt SANCO/10684/2009 (Met hod validation and quality 
control procedures for pesticide residues analysis in food and feed) has been developed and adopted 
according to the provisions of this article. 
 
(iii) The EU incorporates Codex MRLs in its legi slation whenever possible.  The EU may also ask 
its own scientific body, i.e. the European Food Saf ety Authority (EFSA), to review Joint FAO/WHO 
Meetings on Pesticide Residues (JMPR) risk assessments to consider conditions of use and 
consumption pattern in Europe. Resulting MRLs devi ating from Codex MRLs would thus be in line 
with Article 3.3 of the SPS Agreement. 
If no Codex MRLs or EU MRLs have been set for a substance, the EU applies a default level of 0.01 
mg/kg which is based on consideration of general toxicology and detection limits.  The EU considers 
the availability of an analytical  method and its limits of detection as other legitimate factor.  The 
procedure is thus in line with Article 2 and Article 3 of the SPS agreement. Any country that would 
like to use substances for which no Codex MRLs have been set and as a result want to export products 
containing residue higher than 0.01 mg/kg of that su bstance to the EU has the option to either apply 
for a JMPR evaluation and thus a Codex MRL or an EU import tolerance for a combination(s) pesticide/crop in accordance with Article 6 of Reg. (EC) No 396/2005. In the latter situation the procedure required by in ternational standard would be to apply for a JMPR 
evaluation.  This implies that the supporting studi es have to be presented to JMPR.  This requirement 
to present supporting studies can be addressed as 'burde n of proof".  Thus to the EU consideration it 
is clear under SPS rules that the "burden of proof" that the substance used is safe lies with the 
exporting country. 
 
The EU has funded several actions under the "Better Training for Safer Food" (BTSF) programme on 
pesticide residues, to which thir d countries, including India, have been invited.  The EU does not 
grant financial support, neither to EU farmers and organizations, nor to Third Countries to prepare 
scientific dossiers in support of MRL setting.  WT/TPR/M/248/Add.1 
Page 428  
 
 Anti-dumping duties on PET film  
 
Vide Council implementing Regulation no. 469/201 1 of 13 May 2011, amending Regulation No. 
1292/2007, anti-dumping duties have been enhanced  for PET film exporters from India.  This 
enhancement in the duties was done without  any review required under the EU Law. 
 Question 2 
Can the EU please explain the relevant legal provi sions under which the said action was taken without 
following the procedures for a review? 
 
Answer  
As explained in recitals (1)-(6) of Council implem enting Regulation no. 469/2011 of 13 May 2011, the 
expiry of the countervailing duty on PET film originating in India, on 9 March 2011, required an adjustment of the anti-dumping duty rates.  This  is because the anti-dumping duty established by 
Regulation (EC) No 1292/2007 consisted of the du mping margin minus the subsidisation margin 
relating to export subsidies pursuant to the princi ple that no product shall be subject to both anti-
dumping and countervailing duties for the purpose of de aling with one and the same situation arising 
from dumping or from export subs idisation.  As the countervailing duty expired, the level of the 
applied anti-dumping duty rates had to be adjusted a ccordingly.  Further details can be found in 
recitals (7) and following of Council implementing Regulation no. 469/2011.  
Traditional Herbal Medicinal Products 
 The Indian Pharmaceutical companies have not been able to register the Ayurvedic products in the 
EU.  As per the EC Directive on Traditional Herb al Medicinal Products (THMPD) which came into 
force on 1 May 2011, no Ayurvedic products can be  sold in the EU market unless they meet the 
requirements of the Directive which provides for im port of herbal medicines only when there is a 
proven use of these herbal medicines for 30 years out of which 15 years should be in the EU countries.  Moreover the regulation also requires the Industry to submit onerous test reports 
supporting the efficacy of the products which are very expensive.  
Question 3 
(i) How many non-European herbal medicinal produc ts have been registered in the EU market 
since inception?  (ii) Is any Ayurveda product currently registered in the EU market ?   
(iii) The scope of THMPD is limited only to pur ely herbal products.  Many ASU (Ayurveda, 
Siddha and Unani) products contain a combination of  ingredients which are of mineral and animal 
origin and these are denied registration under THMPD.  EU is requested to provide an update on the 
status of these products under the THMPD.  (iv) At present the registration cost under THMPD is based on the number of ingredients used in 
the formulation.  Considering the fact that most of the ASU products are multi-ingredient 
formulations it is suggested that the costs for registration under THMPD should be per product and 
not per- ingredient.  Since a large number of supplie rs of traditional herbal medicinal products are  
small and medium enterprises (SME), these costs are prohibitive.  Is the EU considering any proposal for lowering the costs of registration for SMEs? 
 
(v) The Common Technical Document ("CT D") format under the THMP Directive is 
inappropriate for multi component traditional medicinal formulations given that it is almost an impossible task to provide information with r espect to multi component traditional medicinal WT/TPR/M/248/Add.1 
Page 429 
 
 
  formulations.  Is EU considering any proposal to  cover these multi component traditional medicinal 
formulations?  (vi) The 15 years of traditional use in the EU in our view is not scientifically justified.  We would like to know the rationale for this criteria and th e parameters on the basis of which a relaxation/ 
waiver would be granted?  
 (vii) Could the EU authorities indicate which all test reports are required to be submitted along 
with an application for registration of herbal medici ne?  What are the cost of these testing facilities in 
the EU and whether these testing facilities are available outside EU?  
 
(viii) Since the Directive has fail ed to meet the need for smooth registration of herbal medicinal 
products in Europe, is the EU contempl ating a review of this Directive? 
(ix) Is EU considering Indian monograph as an authentic source of information for traditional use 
evidence and not only as a supportive document when  assessing applications  for traditional use 
registration ?  
 
Answer  
(i) and (ii) The simplified procedure for traditi onal herbal medicinal products is a national 
procedure handled by the competent authorities in each  Member State that covers the registration of 
traditional herbal medicinal products at national l evel.  The EU has some information on the number 
of products registered in each Member State.  However, the EU does not have comprehensive 
information on which specific pr oducts are registered and available or have been submitted for 
registration in each Member State and therefore doe s not know whether Indian products have been 
applied for and registered.   
(iii) The vast majority of medicinal products w ith a sufficiently long tradition are based on herbal 
substances.  Therefore, it was considered appropriate  to limit the scope of the simplified registration 
in a first step to traditional herbal medicinal pr oducts.  However, the Herbal Directive allows the 
presence in the herbal medicinal product of vitami ns or minerals provided that the action of the 
vitamins or minerals is ancillary to that of the h erbal active ingredients.  Herbal medicinal products 
containing non-herbal ingredients whose action is  not ancillary are excluded from the scope of the 
herbal directive.  
 (iv) The costs for registrati on are the fees applied by Members States to register traditional 
herbal medicinal products.  Those fees are establis hed by the authorities of each Member State and 
may be significantly different.  In most count ries a fee per product registered is charged. 
(v) The Common Technical Document (CTD) is an in ternationally agreed consistent format produced 
to overcome delay in the submission of applicati on to the different ICH regions and it has facilitated 
the exchange of information between medi cinal products regulatory authorities. 
 (vi) The long tradition of the medicinal product makes it possible to reduce the need for tests and 
trials that can be replaced by documentation whic h indicates that the product is not harmful in 
specified conditions of use and that its efficacy is plausible on the basis of long-standing use and 
experience.  In any case, where 30 years traditional  used cannot be proven the applicant may apply 
for a marketing authorisation as established in Directive 2001/83/EC. The 15 years used in the EU allows having suffici ent monitoring of the side effects increasing 
confidence on the safety of the pr oduct in the absence of test and trials.  For those medicinal products 
where 15 years used in the EU cannot be demonstrat ed but are otherwise eligible for the simplified 
procedure the Directive 2004/24/EC allows to pro ve the safety of the product by other means which 
are to be assessed by the Committee for Herbal Medicinal Products of the European Medicines 
Agency.   WT/TPR/M/248/Add.1 
Page 430  
 
 (vii) The EU has no access to this information. 
 (viii) The EU has not received any information from the Member States complaining about 
difficulties with the implementation of Directive 2004/24/EC, therefore a review of Directive is not foreseen. 
 
(ix) The simplified procedure allows the registr ation of traditional herbal medicinal products, 
including Chinese or Ayurvedic herbal medicinal pr oducts or herbal medici nal products from any 
other tradition, without requiring tests and trials on safety and efficacy, which the applicant is 
normally obliged to provide.  Instead for registra tion of traditional herbal medicinal products, the 
applicant has to only provide sufficient evidence of  the medicinal use of the product throughout a 
period of at least 30 years, including at least 15 years in the European Union.  Monograph from India or any other country may be submitted as part of the application dossier and they are assessed as any 
other bibliographical evidence submitted in the application.  
Review of the EC Regulation 1383/2003 
 
Many pharmaceutical consignments exported by Indi an companies to Africa and Latin America and 
in transit through the EU territory were seized at various Customs ports in Europe in the year 2008 and 2009.  The seizures took place under the EC regulation No.1383/2003.  The EC assured India that seizures would not occur again and they would am end their Regulation accordingly. In May, 2011, 
the EC has published its proposal to amend the Re gulation 1383/2003.  It is understood that the 
proposal will now be sent to the Council and European Parliament for decision. 
 
Question 4 
(i) What is the timeframe within which the Am endment process is likely to be completed?  
(ii) Does the Amendment proposal address the i ssue of "manufacturing fiction" which was 
supposed to have been used by the Custom s authorities to seize Indian consignments? 
 
Answer 
The European Commission indeed proposed on 24  May 2011 a new regulation which will replace 
Regulation EC 1383/2003.  The procedure for the adoption of the new regulation is the ordinary 
legislative procedure, which is provided for in Ar ticle 294 of the Treaty on the Functioning of the EU. 
According to this procedure, the Commission s ubmits its proposal to th e European Parliament and 
the Council, which are the responsible institutions for the adoption of the regulation.  It is difficult to 
provide an indicative timeframe for the adoption of th e final regulation given the complexity of the 
issues at stake, which go beyond those raised in this question.  
 
With regard to the concerns rai sed by some WTO Members, it is important to emphasize that the 
European Commission had already addressed those con cerns before issuing its proposal for a new 
regulation, including by working with Member States and industry on the basis of Council Regulation EC 1383/2003.   
The proposal for a new regulation does respond to t hose concerns as well, including the one referred 
to in the question, by further clarifying that the cu stoms Regulation is of a procedural nature, and that 
it does not change or add to the substantive laws defining an IPR infringement.  The proposal has 
notably also removed the recital 8 of Regulation 138 3/2003, which had been the source of uncertainty 
in the past, and has added a new recital underlining the importance of a smooth flow of generic 
medicines in transit.  
 Moreover, the proposal includes language requiri ng adequate evidence for customs authorities to 
detain goods that more closely follows TRIPS langu age.  A number of procedural improvements that WT/TPR/M/248/Add.1 
Page 431 
 
 
  respond to the concerns expressed by  other WTO Members have also b een incorporated with regard 
to detention and destruction procedures.  Export of Indian Honey to EU  
In June 2010 the export of Indian honey to the EU was banned despite the fact that no contaminated 
honey was exported to EU by India and that no indica tion of this being given by the EC or the FVO 
mission (residue) during their visit to India in September 2009.   
Question 5 
EU is requested to kindly provide reason for the ban on export of Indian Honey.  EU is also requested 
to inform whether it intends to review the d ecision and likely timeframe for such review?  
Answer  
India has an approved residue control plan and ex ports honey to the EU. Establishments were 
required to check incoming honey 1-2 times per mont h for all parameters.  Chloramphenicol was 
detected in 1.6% of analyzed NRCP samples, tetracyclines in 31%, sulphonamides in 13% and lead above the national action level in 20% of the anal yzed samples, which are mostly taken in the 
establishments.  An EU inspection mission to Indi a took place and found obvious problems with the 
use of antibiotics in the sector which are not satis fying EU's import requirements.  The EU requested 
India at several occasions to provide an action pl an to rectify the problems detected and allowed 
India sufficient time to address the problems iden tified.  In the absence of receiving a satisfactory 
reply from Indian authorities to guarantee that cont rols in India on honey would be meeting EU 
requirements, the EU  had no other option then to install a safeguard measure which could be lifted 
once India has adequate corrective measures in place.  EU is working closely together with India on 
this issue.  
 REACH (Registration, Evaluation, Authorisation and Restriction of Chemical substances). 
 
REACH came into force in June 2007. During the regi stration many companies have found this law to 
be discriminatory between EU a nd non-EU industry.  Additionally, the registration under this law 
involves huge costs and requires generation of lot of data on chemicals to be provided to the EU to 
ascertain safety for animal, plant and human life.  And to  organize, coordinate and file this data for the 
European Chemical Agency in Helsinki, an exporte r has to be a member of a body called Substance 
Information Exchange Forum.  
Question 6 
The definition of SMEs in the EU for the purposes  of lower registration costs does not account for 
labour intensive industries in developing Members like India.  With the use of  both the criteria of 
annual turnover and the number of employees it w ould render many of the Indian SMEs as large 
enterprises resulting in an unfair treatment for th ese enterprises.  Would the EU consider an 
appropriate mechanism for lowering the registration co sts for SMEs that do not meet the criteria of 
number of employees. 
 
Answer  
In order to apply reduced fees and charges, the European Chemicals Agency (ECHA) can only refer 
to a definition of SME as set out in Article 2(1) of the "Fee Regulation" (Commission Regulation (EC) 
No 340/2008).  The Fee Regulation defines SMEs within the meaning of Recommendation 
2003/361/EC.  The EU definition of SMEs applies not only to REACH but also to all EU policies applied within the 
European Economic Area in favor of SMEs.  Any change in the SME definiti on is impossible as it 
would have a horizontal impact on the European functioning. 
It is also impossible to apply a definition of SM Es in the EU and a diff erent one for enterprises in 
third countries.  This would necessarily lead to  discrimination between EU and non-EU operators WT/TPR/M/248/Add.1 
Page 432  
 
 and even between operators coming from different thir d countries.  It would also contravene WTO 
rules.   Question 7 
The creation of Substance Information Exchange Fo rum (SIEF) and consortia which are outside the 
purview of regulatory control and which has the po tential for being dominated by the EU industry 
puts a high burden specifically on SMEs.  Some of  the problems associated with SIEF include the 
high joining fee, penalties for late joining, year ly maintenance fee, non-uniform rules of every 
consortium, high fee of lead registrants, refusal by Me mbers to take in participants, prohibitive cost of 
letter of acceptance etc.  What are the plans envisaged by the EU fo r tackling these problems 
especially faced by SMEs? 
 
Answer  
As has been explained by th e Commission e.g. in the March 2011 TBT Committee meeting with 
regard to the functioning of SIEFs, ECHA and the Co mmission continued their efforts to help industry 
to make SIEFs functioning (ECHA webinars, sta keholders' days, awareness campaigns), all the 
activities intensified in the run up to the first regi stration deadline in 2010.  However, it was for the 
SIEF participants to organize themselves.  An inform al Directors' Contact Group has been created in 
February 2010, in which stakeholders (includi ng SME's and importers) are represented and which 
continues to discuss, inter alia, practical issu es on the functioning of the SIEFs.  The Directors' 
Contact Group extended its mandate to tackle the issu es relevant for the second registration deadline 
in 2013.   Currently the group is preparing a report on th e lessons learnt from the registration 
deadline 2010 and some recommendations for the SIEFs may follow from this report.  
Again, as has been already mentioned by the Commission in the March 2011 TBT meeting, REACH 
does not regulate the formation of consortia.  Any such activity is voluntary and is not regulated under REACH.  Work that may have been developed in a consortium would, however, be part of the 
information that should be exchanged within the SIEF .  Therefore, the information must be accessible 
to all SIEF participants even if they do not participat e in the consortium and they should ask for it on 
the basis of the REACH provisions.   Question 8 
The logic of registration of monomers under REACH is not understood since the life cycle of a monomer ends when it is reacted into a polymer;  monomers are usually stable in polymers and do not 
contain separate risks;  and information on monomers does not provide conclusions on the risk of polymers.  EU is therefore requested to explain th e rationale for seeking the registration of monomers. 
 
Answer  
The European Court of Justice ruling in the " polymers" case (C-558/07), inter alia, recognized the 
existing wording of Article 138(2) REACH, which envisages that "the Commission may present legislative proposals as soon as a practicable and cost-efficient way of selecting polymers for 
registration on the basis of sound technical and valid scientific criteria can be established".  The ECJ 
thus reflected in its judgment the expressed intention of the co-legislators.  This provision has to be 
read together with the registration exemption fo r polymers laid down in Article 2(9) REACH.  
 
The approach for the 'other substances' is different , as they are subject to registration from the 
beginning.  The rationale for the different approach to polymers as a special category of substances 
under REACH was the fact that there are thought to  be some 70.000 to 400.000 different polymer 
substances compared to a few hundred monomer s ubstances.  The information obtained from 
monomer registration could help the Commission w ith its task under Article 138(2) to publish a 
report on the risks posed by polymers in comparison with other substances and on the need, if any, to 
register certain types of polymer, taking into a ccount of competitiveness and innovation on the one 
hand and the protection of human health and the environment on the other.   WT/TPR/M/248/Add.1 
Page 433 
 
 
  Question 9 
The EU is requested to review the requirement for registration of the entire tonnage of the substance 
in an article even if less than 100% of the substan ce is intended for release on use of the article.  This 
would increase the tonnage band for registration th ereby putting greater burden on the registrant. 
 
Answer  
As already pointed out in the TBT Committee, the quan tity criteria for the registration of substances 
in articles has been fixed in order to ensure consis tency with the requirements of the registration of 
substances and to ensure a similar data collection for substances in articles and in substances.  
 
Question 10 REACH emphasizes the sharing of animal testing data and avoidance of animal testing.  The Joint 
Research Centre (JRC) of the EC had concluded that in a best-case scenario, REACH would require testing of 2.1 million to 3.9 million animals by 2018.  Recent reports in the scientific magazine Nature 
however reveal that the JRC figures were gross under-estimates.  It opines that generating REACH 
data could require up to 54 million animals and cost almost €10 billion over the next decade, 
rendering the legislation unfeasible.  This raises very serious concerns about the economic  and 
regulatory rationale of REACH.  We would like to k now the steps taken by EU to ensure that there is 
balance between the optimization of costs and avoidance of animal testing.   
Answer  
We assume that India refers to the study by C onstanza Rovida and Thomas  Hartung published in the 
scientific magazine Nature in August 2009, in whic h they suggest that the testing required under 
REACH would involve 54 million vertebrate animals and that the costs would amount to 9.5 billion €. The study has been reviewed by ECHA who concl uded (ECHA press release of 28 August 2009) that 
the real figures are more likely to be the ones as  originally estimated during the negotiation of 
REACH, i.e. 9 million laboratory animals would be in volved in the tests required (that figure includes 
offspring born during the studies) and that the costs for conducting the tests would amount to 1.3 billion €.  ECHA considered that the Rovida and Hartung study overestimat ed the impact of EU 
legislation on animal testing by six times: 
 The likely number of substances that will be registered under REACH and requiring a full 
data set is overestimated – by almost two fold – mainly because the assumptions are not justified and seem to be incorrect.  
 The likely number of tests and laboratory animals required is overestimated and is 
approximately six times higher than the likely rea lity.  The overestimation is mainly because 
the availability of existing information and  the possibilities for adapting the information 
requirements are not taken in to account, and fu rther because the rules for requesting testing 
in a second species are not interpreted correctly; 
 The likely costs for conducting the tests are over estimated by approximately the same factor. 
 
Trade in Services  
Question 11 
The following issues are highlighted so that EU may elaborate on the steps contemplated to address 
these concerns: 
(i) There are a number of Mode IV restrictions in the EC such as the requirement for 3-6 years of 
professional experience for contractual suppliers  and independent professionals.  Moreover, 
there are delays in awarding Visas and di ffering regulations gove rning professional 
qualifications prevail across Member States.  
(ii) Local service providers get a favorable tax treat ment than Foreign Service providers in EU. 
For example, in some Member States the costs of professional training are tax-deductible only 
if the courses take place within the Member St ate.  Similarly, life insurance and additional WT/TPR/M/248/Add.1 
Page 434  
 
 insurance policies, pension fund and investment fund contracts can be offset against tax, only 
if concluded with local insurance companies. 
(iii) Quantitative restrictions on access to service ac tivities (e.g. quotas or rules governing the 
number of service providers, rules on maximum surface area, or geographic distance limits 
between service providers), can place established national operators at an advantage over new 
entrants.   
(iv) Nationality requirements exist in several Memb er States with respect to shareholders, 
management and staff of service enterprises, and with respect to some regulated professions. Similarly these are residence requirements, partic ularly those relating to managers of service 
enterprises. 
Answer  
The existing limitations on professional experience, all nationality and residence requirements as well 
as ENTs are clearly inscribed in the EU schedule.  It is stressed that those conditions are subject to 
negotiations in the framework of both the DDA or bilateral negotiations. As regards Visa procedures, please also note th at the Member States of the EU, like all other 
countries of the world, follow a security based applic ation of visa rules, in full awareness of their 
obligation not to nullify or impair the benefits a ccruing to any WTO Member  under the terms of a 
specific commitment.  Otherwise, any measure re gulating the entry and stay into Member States' 
territory, such as visas policies, are outside of the scope of the GATS.  
Lastly, as concerns the issue of a lack of fu ll harmonisation of the recognition of professional 
qualifications, it is reiterated that the EU Treaty provides that the EU adopts rules on the recognition 
of professional qualifications to fa cilitate the free movement of persons .  Accordingly, EU legislation 
was introduced to ensure the mutual recognition of qualifications in regulated professions.  However, 
those directives on mutual recognition of qualification only apply to EU nationals and the right to 
practise a regulated professional service in one Member State does not grant the right to practise in another Member State. Member Stat es are however free to apply the di rective also to third country 
nationals.  Yet, in order for third-country na tionals to obtain an EU-wide recognition of their 
qualification, it is necessary that a Mutual Recogn ition Agreement is negotiated; an option to which 
the EU is always open should the professional bodies show a real interest and need for it. 
 ECUADOR 
Informe de la Unión Europea 
 
En el párrafo 35 del informe de la UE, se menc iona la adopción de la Comunicación Energía 2020 - 
Estrategia para una energía competitiva, sostenible  y segura", donde se establece las prioridades en 
materia energética para los 10 próximos años y se ñala las medidas que hay que tomar para hacer 
frente a los retos de ahorrar energía.  En la acción 2, de la prioridad 5  de dicho documento se indica 
que la UE establecerá acuerdos en materia de ener gía con proveedores clave y países de tránsito.  
 
Question 1 
¿Podría la UE ampliar información acerca de qui énes serían estos proveedores clave y países de 
tránsito?  Answer  
The EU's geographical location puts it in close prox imity to a number of energy-producing regions as 
well as at the intersection of important supply r outes.  Countries in the EU's neighbourhood already 
account for a majority of the EU's imports in oil and gas, with Russia, Norway and Algeria 
representing together 85% of the EU natural gas im ports and almost 50% of the crude oil imports. 
These countries, together with the OPEC countries,  are the EU's traditional hydrocarbon suppliers. WT/TPR/M/248/Add.1 
Page 435 
 
 
  The Caspian, Gulf and Arctic regions, Central Asia, and countries like Brazil, Canada and Nigeria 
also represent significant potential for the EU in t erms of new sources of supply.  Other countries are 
interesting because of their importance as LNG s uppliers, renewable energy producers or because of 
their significant coal or natural uranium reserves.   The reinforced energy partnerships will be sought 
both with the EU's traditional energy suppliers and transit countries as well as with emerging 
strategic energy suppliers.  
Informe de la Secretaría 
 
II. RÉGIMEN DE POLÍTICA COMERCIAL 
(2) M
EDIDAS QUE AFECTAN DIRECTAMENTE A LAS IMPORTACIONES  
(viii) Reglamentos técnicos y normas 
Question 2 
En el párrafo 78 se indica que "entre octubre de  2008 y enero de 2011, los Miembros de la OMC 
expusieron en el Comité OTC sus preocupacion es respecto de varias medidas propuestas o adoptadas 
por la UE o sus Estados miembros (cuadro III. 7)" donde consta las preocupaciones de varios 
Miembros respecto al establecimiento de normas respecto a "nuevos alimentos"  El Ecuador apreciaría conocer mayor información respecto de los fundamentos científicos en los 
cuales se fundamentan las notificaciones G/TBT/M/46, 47 y G/TBT/N/EEC/188.  
Asimismo, agradeceríamos conocer qué pasos se ha da do recientemente en el esfuerzo de la UE por 
modificar estos reglamentos para ponerlos en  conformidad con la normativa multilateral.  
 
Answer : 
On the Commission proposal for a Regulation on no vel foods notified to the TBT Committee in March 
2008 (G/TBT/N/EEC/188), the EU has sent a written reply to WTO members in October 2008.  The 
EU has also provided clarifications as well as  an update on the legislative procedure at every 
occasion that the issue has been raised in the TBT and SPS Committees.   The last time the issue was 
raised in the TBT and in the SPS Committees was in March and in October 2009, respectively.  The 
EU replied that Members' concerns would be taken into account in the on-going discussions in the 
legislative process.  Moreover, in March 2011, an  addendum to the initial notice was communicated 
to keep the WTO members informed of the legislative procedure.  
At the last SPS committee in June 2011, many An dean countries raised again the issue of the EU 
Novel Food (NF) Regulation and in particular the fa ct that the new regulation had not adopted at the 
end of March 2011.  The EU informed these concern ed countries that despite the best efforts for 
reconciling differing views, an agreement on a new NF Regulation had not been possible.  As the final 
negotiation on the revision of the Novel Food Re gulation failed in March 2011, the EU is now 
examining the next steps forward.  It remains confident that any new regulation will contain a 
centralised and quicker authorisatio n procedure for novel foods and specific measures for traditional 
foods from third countries to access EU markets as agreement has already been reached on this front 
between the European Parliament and the Council.   
(ix) Normas sanitarias y fitosanitarias 
Question 3 
En el párrafo 101 se indica que "desde el último Ex amen de la UE, los Miembros de la OMC han 
examinado en el Comité MSF las preocupaciones suscitadas por varias medidas de la UE (cuadro 
III.9)." donde consta la preocup ación del Ecuador respecto a "límit es máximos para los residuos de 
plaguicidas en el cacao." 
 WT/TPR/M/248/Add.1 
Page 436  
 
 El Ecuador apreciaría conocer si la UE ha d esarrollado un análisis de riesgo que fundamente los 
LMRs constantes en el Reglamento CE 396/05.  Además agradeceríamos información acerca de cómo el establecimiento por omisión de LMRs iguales a 0,01 ppm es compatible con las disposic iones del acuerdo MSF de la OMC, considerando 
que no tienen análisis de riesgo que los sustenten? 
 ¿Si de conformidad con el Acuerdo MSF, para la aplicación de un LMR el Miembro que aplica la 
medida debe justificar la necesidad de ésta para alcanzar su nivel de protección adecuado, por qué la 
UE invierte la carga de la prueba en el senti do de pedir a los países exportadores o a las empresas 
agroquímicas que demuestren la inocuidad de sus productos? 
 
Answer  
The EU incorporates Codex MRLs in its legislati on whenever possible.  The EU may also ask its own 
scientific body, i.e. the European Food Safety Author ity (EFSA), to review Joint FAO/WHO Meetings 
on Pesticide Residues (JMPR) risk assessments to c onsider conditions of use and consumption pattern 
in Europe.  Resulting MRLs deviating from Codex MRLs  would thus be in line with Article 3.3 of the 
SPS Agreement. If no Codex MRLs or EU MRLs have been set for a substance, the EU applies a default level of 0.01 
mg/kg which is based on consideration of general toxicology and detection limits.  The EU considers 
the availability of an analytical  method and its limits of detection as other legitimate factor.  The 
procedure is thus in line with Article  2 and Article 3 of the SPS agreement.  
Any country that would like to use substances for which no Codex MRLs have been set and as a result 
want to export products containing residue higher than 0.01 mg/kg of that substance to the EU has 
the option to either apply for a JMPR evaluation and thus a Codex MRL or an EU import tolerance 
for a combination(s) pesticide/crop in accordan ce with Article 6 of Reg. (EC) No 396/2005. 
In the latter situation the procedure required by in ternational standard would be to apply for a JMPR 
evaluation.  This implies that the supporting studi es have to be presented to JMPR.  This requirement 
to present supporting studies can be addressed as 'burde n of proof".  Thus to the EU consideration it 
is clear under SPS rules that the "burden of proof" that the substance used is safe lies with the 
exporting country. 
 
(4) 
ACUERDOS Y ARREGLOS COMERCIALES PREFERENCIALES  
(i) Preferencias unilaterales 
Question 4 
En el párrafo 76 se explica que según el nuevo Re glamento Nº 732/2008 se introduce un sistema de 
graduación basado en estadísticas, por medio del cual  los países pasan a ser beneficiarios del SGP o 
deja de serlo. 
 ¿Podría ampliar la Unión Europea la información so bre las razones por las cuales decidió  introducir 
este cambio en el SGP?  
Answer  
The proposal for the new GSP schem e maintains the core principles  behind the graduation 
mechanism but corrects three elements: 
 Product sections used for graduation are expand ed from 21 to 32.  This change was 
introduced to ensure that graduation is more object ive, as the products in the categories are 
more homogenous.  
 Graduation thresholds increase from 15 % to 17.5 % (and from 12.5% to 14.5% for textiles).  
As the number of GSP beneficiaries drop, gra duation would happen sooner.  An increase in 
the thresholds was necessary to keep gradua tion to the minimum level necessary. WT/TPR/M/248/Add.1 
Page 437 
 
 
   Graduation will not apply to GSP+ countries.   Like EBA countries, GSP+ countries are 
vulnerable and display a non-diversified export ba se.  Given that graduation has never 
applied to EBA, it was only fair to treat GSP+ countries in the same fashion. 
On the whole, revamped graduation is expected to  remove preferences from sectors that no longer 
need them - and provide opportunity to those most in need of our help.  
 
Question 5 
Ecuador ha avocado conocimiento de  que la Comisión Europea presentó al Consejo y al Parlamento 
Europeos una propuesta de nuevo Reglamento para el Sistema de Preferencias Arancelarias Generalizadas (SPG) de la UE.  Dicha propuesta actualm ente en debate entrará en vigor recién a partir 
del 1 de enero de 2014 
 
Respecto de este proyecto de reglamento , podría la Unión Europea explicar: 
 ¿Qué convenciones internacionales deberán ser ratif icadas por los beneficiarios y el procedimiento 
que se considerará para el retiro de las preferencias?  
 
¿Qué criterios se utilizará para incluir salvaguard ias y medidas de vigilancia específicas en los 
sectores pesquero, textil, y agrícola?  ¿Qué fuentes, además de la ONU y de la OIT, podr ían ser utilizadas como base para el retiro de las 
preferencias otorgadas bajo el SPG+? 
 
Answer  
A GSP beneficiary country may benefit from the ta riff preferences provided  under the special 
incentive arrangement for sustainable developmen t and good governance (the GSP+) if it has ratified 
all the conventions listed in Annex VIII to the proposal for the new GSP:   
 
1. Convention on the Prevention and Punishment of the Crime of Genocide (1948) 
2. International Convention on the Elimination of All Forms of Racial Discrimination (1965)  
3. International Covenant on Civil and Political Rights (1966)  
4. International Covenant on Econo mic Social and Cultural Rights (1966)  
5. Convention on the Elimination of All Fo rms of Discrimination Against Women (1979)  
6. Convention Against Torture and other Cruel, I nhuman or Degrading Treatment or Punishment (1984)  
7. Convention on the Rights of the Child (1989)  
8. Convention concerning Forced or Compulsory Labour, No. 29 (1930)  
9. Convention concerning Freedom of Association and Protection of the Right to Organize, No. 87 (1948)  
10. Convention concerning the Application of the Principles of the Right to Organize and to Bargain Collectively, No. 98 (1949)  
11. Convention concerning Equal Remuneration of Men and Women Workers for Work of Equal Value, No. 100 (1951)  
12. Convention concerning the Abo lition of Forced Labour, No. 105 (1957)  
13. Convention concerning Discrimination in Resp ect of Employment and Occupation, No. 111 (1958)  
14. Convention concerning Minimum Age for Admission to Employment, No. 138 (1973)  
15. Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, 
No. 182 (1999)  
16. Convention on International Trade in Endange red Species of Wild Fauna and Flora (1973) 
17. Montreal Protocol on Substances that Deplete the Ozone Layer (1987)  
18. Basel Convention on the Control of Transboundary Move ments of Hazardous Wastes  and Their Disposal (1989)  
19. Convention on Biological Diversity (1992)  
20. The United Nations Framework C onvention on Climate Change (1992) 
21. Cartagena Protocol on Biosafety (2000)  
22. Stockholm Convention on persis tent Organic Pollutants (2001) 
(cont'd) WT/TPR/M/248/Add.1 
Page 438  
 
 23. Kyoto Protocol to the United Nations Framework Convention on Climate Change (1998)  
24. United Nations Single Convention on Narcotic Drugs (1961)  
25. United Nations Convention on Psychotropic Substances (1971)  
26. United Nations Convention against Illicit Traffic in  Narcotic Drugs and Psychotropic Substances (1988)  
27. United Nations Convention against Corruption (2004) 
 
The procedure for the temporary withdrawal of p references is referred to in Article 15 and Article 16 
of the proposal for the new GSP: 
"Article 15 1. The special incentive arrangement for sust ainable development and good governance shall be 
withdrawn temporarily, in respect of all or of cert ain products originating in a GSP+ beneficiary 
country, where in practice a beneficiary country does not respect its binding undertakings as referred 
to in Article 9(1)(c),(d) and (e). 
2. The burden of proof for compliance with its  obligations resulting from binding undertakings 
as referred to in Article 9(1)(c),(d) and (e ) shall be on the GSP+ beneficiary country. 
3. Where, either on the basis of the conclusions of the report referred to in Article 14 or on the 
basis of the evidence available, the Commission has a reasonable doubt that a particular GSP+ 
beneficiary country does not respect its binding undertak ings as referred to in Article 9(1)(c),(d) and 
(e), it shall, in accordance with the advisory procedure referred to in Article 38(2), adopt a decision 
to initiate the procedure for the temporary withdr awal of the tariff prefer ences provided under the 
special incentive arrangement for sustainable development and good governance.  The Commission 
shall inform the European Parlia ment and the Council thereof. 
4. The Commission shall publish a notice in th e Official Journal of the European Union and 
notify the GSP+ beneficiary country con cerned thereof.  The notice shall: 
(a) state the grounds for the reasonable doubt as to the fulfilment of the binding 
undertakings made by the GSP+ beneficiary count ry as referred to Artic le 9(1)(c),(d) and (e), 
which may call into question its right to conti nue to enjoy the tariff preferences provided 
under the special incentive arrangement for sustainable development and good governance; 
and 
(b) specify the period, which may not exceed six months from the date  of publication of 
the notice, within which a GSP+ benefi ciary country shall submit its observations. 
5. The Commission shall provide the beneficiary country concerned with every opportunity to 
cooperate during the period referred to in paragraph 4(b). 6. The Commission shall seek all information it considers necessary,  inter alia, the conclusions 
and recommendations of the relevant m onitoring bodies.  In drawing its conclusions, the Commission 
shall assess all relevant information. 
7. Within three months after expiry of the p eriod specified in the notice, the Commission shall 
decide: 
(a) to terminate the temporary withdrawal procedure;  or (b) to temporarily withdraw the tariff pref erences provided under the special incentive 
arrangement for sustainable development and good governance.  
8. Where the Commission considers that the findings  do not justify temporary withdrawal, it 
shall adopt a decision to terminate the temporary withdrawal procedure in accordance with the 
advisory procedure referred to in Article 38(2).  9. Where the Commission considers that the findi ngs justify temporary withdrawal for the 
reasons referred to in paragraph 1, it shall be em powered, in accordance with Article 36, to adopt 
delegated acts to amend Annex III in order to tem porarily withdraw the tariff preferences referred to 
in Article 1(2)(b). 10. Where the Commission decides on temporary wit hdrawal, such decision shall enter into force 
six months after its adoption. 11. Where the reasons justifying temporary w ithdrawal no longer apply before the decision 
referred to in paragraph 9 takes effect the Commissi on shall be empowered to repeal the decision to WT/TPR/M/248/Add.1 
Page 439 
 
 
  temporarily withdraw tariff preferences in accor dance with the urgency procedure referred to in 
Article 37. 12. The Commission shall be empowered to adopt de legated acts, in accordance with Article 36, 
to establish rules related to the procedure for temporary withdrawal of the special incentive 
arrangement for sustainable development and g ood governance in particular with respect to 
deadlines, rights of parties, confidentiality and review. 
 "Article 16 Where the Commission finds that the reasons jus tifying a temporary withdrawal of the tariff 
preferences as referred to in Artic le 15(1) no longer apply, it sha ll reinstate the tariff preferences 
provided under the special incentive arrangement  for sustainable development and good governance. 
For this purpose the Commission shall be empowered  to adopt delegated acts, in accordance with 
Article 36, to amend Annex III." According to the proposal for the new GSP scheme,  in the procedure of tempoarry withdrawal of 
GSP+, the Commission will seek all information it c onsiders necessary, inter alia, the conclusions 
and recommendations of the relevant m onitoring bodies.  In drawing its conclusions, the Commission 
will assess all relevant information.  
The criteria for the application of safeguards in  the textile, agriculture and fisheries sectors are 
referred to in Article 29 of the proposal for the new GSP: 
"Article29  
1. Without prejudice to the provisions of Section I of this Chapter, on 1 January of each year, 
the Commission, on its own initiative and in accord ance with the advisory procedure referred to in 
Article 38(2), shall remove the tariff preferences refe rred to in Articles 7 and 13 with respect to the 
products from GSP section 11(b) or to produc ts falling under Combined Nomenclature codes 
22071000, 22072000, 29 091910, 38140090, 38 200000, and 38249097 where imports of such 
products, listed respectively in Annex V or IX, which ever is applicable, originate in a beneficiary 
country and their total: 
(a) increase by at least 15% in quantity (by volume), as compared  with the previous 
calendar year;  or (b) for products under GSP section 11(b), exceed the share referred to in Annex VI, 
paragraph 2 of the value of European Union im ports of products in GSP section 11(b) from 
all countries and territories listed in Annex I during any period of twelve months. 
2. Paragraph 1 shall not apply to EBA beneficiary countries, nor shall it apply to countries with 
a share not exceeding 8 % of European Union imports of products listed in Annex V or IX, whichever 
is applicable.  3. The removal of the tariff preferences shall ta ke effect two months after the date of publication 
of the Commission's decision to this effect in the Official Journal of the European Union." 
 Question 6 
El Reglamento actual del SPG (art. 8 del Re glamento CE/732/2008) establece que para ser 
beneficiario del SPG+ los países no deben estar cl asificados por el Banco Mundial como país con 
ingresos elevados durante tres años consecutivos .  Mientras que, en la propuesta para nuevo 
Reglamento, la Comisión indica que un país, para ser beneficiario del SPG y del SPG+, no debe ser 
clasificado por el Banco Mundial como país de  ingresos medianos-altos durante tres años 
consecutivos. ¿Ha previsto algún tipo de medida la UE  para evitar, con este nuevo sistema, excluir a 
gran cantidad de países en vías de  desarrollo del SPG y del SPG+, entre ellos a algunos países en 
desarrollo vulnerables? 
¿Ha considerado la UE que al excluir del SPG+ a lo s países en vías de desarrollo clasificados como de 
ingresos medianos-altos por el Banco Mundial, sin importar su nivel de diversificación y de 
vulnerabilidad de las exportaciones se trasto ca el espíritu del Reglamento anterior? 
 WT/TPR/M/248/Add.1 
Page 440  
 
 ¿Ha considerado la UE que la pérdida de lo s beneficios del SPG provocará una reducción de 
competitividad de las exportaciones del país benefici ario frente a las exportaciones de otros países en 
desarrollo y desarrollados, frenaría el desarrollo de  dichos países y podría hacerlos retornar a la 
clasificación de países de ingresos medianos-bajos?  Answer  
The Commission's proposal adapts the EU GSP sch eme to the changes that have occurred in the 
global landscape and in the trade, financial and d evelopment needs of developing countries.  The 
main aim of the proposal for the new GSP scheme is to focus help on countries most in need.  
Preferences will be concentrated on Least-Deve loped Countries (LDCs) and other low income 
countries.  More advanced economies w ill have the GSP pref erences deferred. 
However, no developing country is excluded from th e GSP. Developing countries will be either a 
beneficiary or eligible to be a beneficiary.  More advanced economies will again receive preferences 
should there be a change in their trade, financial  and development needs as  defined in accordance 
with clear, objective and transparent criteria.  
The Commission has carefully analyzed the implications of its proposal. It has been estimated that the 
impact on the countries whose preferences are deferred is , at most, marginal.  The first reason is that 
for more advanced developing countries, exports  under the EU GSP scheme are not a sizeable 
proportion compared to their total exports to the EU.  The second reason is that the margins of 
preferences provided by the EU a re relatively low, given our already  low MFN tariff levels.  A third 
reason is that many current beneficiaries, for wh ich preferences are defer red, are EU FTA partners, 
so they already enjoy better p referential access to the EU market  irrespective of GSP preferences. 
While the impact on the countries whose preferences are deferred is marginal, if any, additional 
opportunities are provided for countries most in n eed:  Least-Developed Countries (LDCs) and other 
low income countries.  The overall result is thus  better opportunities for those developing countries 
that are most in need.   
In respect to GSP+ the so-called "vulnerability crite rion" is maintained in the proposal, while one of 
the two economic conditions a country needs to fulfil in order to be eligible fo r GSP+ is relaxed to 
enable more countries to appl y for the GSP+ preferences.  
 
Question 7 
¿Ha considerado la UE ofrecer una mayor oferta arancelaria y más generosa a los países beneficiarios, tomando en cuenta que algunos productos claves para el comercio internacional de países en 
desarrollo todavía no son cubiertos por el SPG de la Unión Europea y otros siguen siendo declarados 
sensibles?   
Answer 
The proposal for the new GSP leaves product co verage and preference margins untouched.  If 
products or preferences would be expanded, it would be the poorest, those most in need, who would 
be hurt. The reason is that the poorest (LDCs) already have duty free, quota free access to all products.  This 
means that they have an advantage for those products —they can export them without duty while other 
developing countries have to pay duties.  Increasing  the products or preferences which enjoy GSP 
will then make LDC exports relatively less attrac tive.  The Commission impact assessment showed 
clearly that LDC exports would decrease if we were to add products to the scheme or increase 
preferences for products already in the scheme.  Th is would set the poorest back, rather than help 
them. 
 WT/TPR/M/248/Add.1 
Page 441 
 
 
  Question 8 
¿Ha considerado la UE otorgar un acceso más simple  y más fácil al SPG a través de la inclusión del 
tratamiento de las barreras no arancelarias, y de cláusulas que contengan períodos transitorios más 
largos para la aplicación de me didas sanitarias y fitosanitarias, estándares técnicos o regulaciones 
aduaneras? 
 
Answer  
The GSP focuses on the granting of tariff preferen ces.  Non-tariff barriers, such as SPS and TBT 
measures are not covered.  
Question 9 -¿Ha considerado la UE conceder  ayuda para el comercio a los países beneficiarios de SPG+ y de 
EBA para ejecutar tales medidas?  
Answer  
With regards to Latin American countries, the EU development cooperation activities are carried out, 
at a bilateral level, within the framework of the Regulation (EC) No 1905/2006 of the European 
Parliament and of the Council of 18 December 2006 establishing a financing instrument for development cooperation, which main ob jective is the fight against poverty. 
Sub-regional organisations (CAN – Comunidad A ndina de Naciones, Mercosur – Mercado Común 
del Sur as well as SICA –Sistema de Integración de Centroameric a) have benefited the most from 
EU's assistance in the field of technical standards .  Cooperation in the field of technical standards 
has included a number of projects, ranging from tr ade related technical assistance (TRTA), sanitary 
and phyto-sanitary standards to customs cooperation. Details on the EU's bilateral cooperation w ith Latin American countries and sub-regional 
organisations are spelled out in the Country/Regional  Strategy Papers, which are publicly available 
on the website the European External Action Service (http://eeas.europa.eu/). 
III. POLÍTICAS Y PRÁCTICAS COMERCIALES, POR MEDIDAS 
(2) M
EDIDAS QUE AFECTAN DIRECTAMENTE A LAS EXPORTACIONES  
(v) Financiación, seguros, garantías y promoción 
Question 10 
En el párrafo 137 se indica que "A raíz del inicio de  la crisis financiera de 2008, la Comisión Europea 
simplificó la "cláusula de salvagua rdia" del seguro de exportación a co rto plazo.   En virtud de esta 
cláusula, y previa autorización de la Comisión, los Estados miembros pueden ofrecer seguros de 
crédito a la exportación contra "riesgos negociabl es", siempre que no se disponga temporalmente de 
cobertura en el mercado privado."  ¿Podría la UE explicar cómo es este seguro de créd ito a la exportación compatible con las normas de 
la OMC? 
 
Answer 
The provision in question is tem porary and has to be understood in th e context of the international 
response to shortages in trade finance created by the gl obal financial crisis.  It will be recalled that 
the WTO Director-General has repeatedly called up on the international community to address this 
problem.  
The EU applies strict state aid rules to these me asures.  Therefore, there is an essential need to 
examine such planned measures in advance on a case -by-case basis in view of terms of comparable 
financing available to the particular recipient.  
 WT/TPR/M/248/Add.1 
Page 442  
 
 (3) 
MEDIDAS QUE AFECTAN A LA PRODUCCIÓN Y EL COMERCIO  
(vi) Derechos de propiedad intelectual 
En el párrafo 261 se asegura que en 2009, hubo más de  43.500 casos de retenciones de mercancías por 
las autoridades aduaneras, con un total de 118 millones de artículos.  Question 11 
¿Los operadores de aduana recibe n algún tipo de gratificación o reconocimiento basados en el número 
de capturas o intervenciones realizadas a la mercadería importada? 
 
Answer 
No. 
_______________ 
 
FOLLOW-UP QUESTIONS 
JAPAN 
Question 4 (Page 131, footnote 92) 
Japan appreciates the detailed explanation from the EU, but Japan has not received an answer to its 
specific question.  Could the EU explain if re gulation No.544/2009 is consistent with WTO 
agreements, especially how the MFN is interprete d with regard to the EU roaming regulation? 
 Answer 
The EU is happy to confirm that the Roaming Re gulations is consistent with the WTO agreement. 
 
Question 5 (Page 131, paragraph 97) 
According to the EU's answer, the ePrivacy Dir ective applies to any high-level privacy situation 
regardless of the technology involved.  But this do esn't answer our question.  Could the EU explain 
how it implements the regulation re garding the acquisition of so-called "cookies"?  Japan would also 
like to know the relationship between the ePriv acy Directive and the GATS obligation, especially 
mode 1.  
Answer 
As with every European Directive adopted by the Co uncil and the European Parliament, the Directive 
is implemented through secondary legislation in  the 27 Member States of the European Union.  
 
Question 6 (Page 131, paragraph 97) 
According the EU's answer, the definition of SMP is based on the EU's competition law.  Could the 
EU answer our question:  Is SMP the same concept as "use of its position in the market" which is one 
of the requirements of being a "major supplier" according to the Reference paper of the GATS? Japan also would like to know whether there ar e any actual carriers that require the need for 
functional separation.    
Answer 
The notions of an undertaking having "significant market power" under the regulatory framework for 
electronic communication services (or "dominant op erator" in antitrust cases, respectively) and 
"major supplier" within the meaning of the Te lecommunications Reference Paper to the GATS 
describe, in principle, two legally distinct concepts ;  the former being a EU law based concept subject 
to interpretation of the EU courts and the latter a WTO concept subject to interpretation within the 
WTO settlement system.  However, those two concep ts are fully compatible since case-by-case 
analyzes of the types of behaviour, which assess wh ether an operator either has significant market 
power or could be considered a "major supplier", are to follow similar considerations.  In both 
scenarios one will have to take into account indica tors such as the overall size of the undertaking, WT/TPR/M/248/Add.1 
Page 443 
 
 
  market shares, control of the infrastructure not easily duplicated, economies of scope and scale and 
potential countervailing buyer power in order to a ssess whether the operato rs market strength is 
likely to allow him:  (a) to act independently fr om its competitors (when determining the presence of 
"significant market power" or "dominance") or (b) to materially affect the terms of participation in 
the relevant market (when determining whether or not the undertaking has the status of "major 
supplier").  As a result, we would like to refer again to recital (29) of the Framework Directive 
(Directive 2002/21/EC) which states that the 2002 EU regulatory framework for electronic communications (as revised by the 2009 "Telecom Reform ") is consistent with the commitments of the 
EU within the WTO.  
As to the need for particular carriers to be subj ect to an obligation of functional separation, it is 
worth pointing out that the power to impose any su ch obligation following a thorough assessment of 
the wholesale access markets in th e telecommunications sector has been bestowed upon the national 
regulators.  The Commission's role is limited to  assessing any proposals by a national regulator in 
this regard against its compliance with the regulato ry framework; in particul ar against the conditions 
set out in Article 13a of the Access Directive (D irective 2002/19/EC) and to take a decision to either 
authorize or prevent the national authority from taking the proposed measures (see Article 8 (3) of the 
Access Directive).  For this reason, unless and until a national regulator formally requests to apply a 
functional separation remedy in their jurisdiction,  the Commission cannot state whether there are, 
indeed, any carriers that require to be functionally separated.  As previously stated, in some Member 
States the national authorities have already decided to impose certain separation obligations prior to 
the introduction of Article 13a and under a different ( national) legal regime.  In this respect the 
Commission is aware of two Member States wher e the incumbent carrier is subject to certain 
separation requirements (the United Kingdom and Italy). 
Question 14 (Page 29, Paragraph 7) 
1) How does the EU address the concerns that ri sing costs interfere with the trade facilitation? 
2) As Japan and the EU mutually recognize the "Authorized Economic Operator" programmes, 
we would like to know if the EU side plans to  relax the rules for AE O companies in Japan. 
 
Answer 
1) The EU has taken a number of initiatives in  recent years to simplify customs procedures and 
reduce costs.  The EU aims to decrease the burdens on traders and thus facilitate trade. 
2) The security agreements that the EU has nego tiated with specific countries such as Norway, 
Switzerland and Andorra, due to the particular geographi cal situation, is different from the mutual 
recognition agreement of AEO programmes between the EU and Japan.  Under the mutual 
recognition agreement of AEO programmes between J apan and the EU, the status of each other's 
AEOs is taken into account during the security  risk analysis when goods enter or leave their 
respective customs territories.  This leads to a reduction in physical and documentary controls and 
therefore to faster and more predictable supply c hains.  The mutual recognition agreement does not 
allow for a relaxation of the obligati on to lodge Entry Summary Declarations. 
 
Question 17 (Page 37, Paragraph 40) 
It is understandable that the EU applies binding tari ffs in the WTO.  Howeve r, the situation remains 
the same where sudden changes in applied tari ffs could still pose a risk to a sound business 
environment.  Could the EU clarify the procedur es for eliminating duty suspensions in cases where 
such elimination is appealed by companies a nd where it is judged by the European Commission? 
 
Answer 
The parties known to be concerned in the EU (impor ters, users or their associations) are informed 
well in advance by the authorities of the Member Stat es of requests for removal of tariff suspensions. 
Such requests are filed around 7 to 8 months prior to their final removal and are discussed thoroughly in the Economic Tariff Questions Group.  Moreover, th e proposal of the Commission to WT/TPR/M/248/Add.1 
Page 444  
 
 the Council for the removal is published in the following website:  http://eur-
lex.europa.eu/en/prep/index.htm. more than one month before the proposal becomes applicable.   
 
Question 19 (paragraph 87, page 52) 
According to the EU's answer, radio and teleco m equipment is not deemed high-risk for safety 
purposes under EU legislation; hence no third-part y conformity assessment needs to be applied.  
When harmonized regulations only aren't used or essential test suites are not established, Japan 
understands that notification bodies should engage in essential test suites or technical documentation 
through the SDoC process of radio and telecom e quipment, including 3G or LTE base stations.  
Japan would like to know when the notification bodi es of the EU get involved in the process of the 
SDoC.  Could the EU provide concrete criteria? 
 
Answer 
A manufacturer declares conform ity of radio and telecom equipment with Directive 1999/5/EC on 
Radio and Telecommunications Terminal Equipment on his own responsibility. 
In this context, the manufacturer may voluntarily  seek the opinion of a notified body with respect to 
health and safety aspects but, as explained in the reply to the original Q19, the manufacturer can just 
follow the SDoC procedure. With regard to the avoidance of harmful interference by radio equi pment, when a manufacturer has 
not applied existing European harmonized standards, or these are not available, the manufacturer 
shall seek the opinion of a notified body before decl aring the conformity of radio equipment. 
Note that, in practice, essential radio test suites are available in harmoniZed standards.  
 
Question 24 (paragraph 190, page 78) 
Has there been any case in which the European Commission has sued EU Member States due to 
violation of the EU public procurement Directives?  If so, what kind of case was it?  Please indicate 
the URL of the website in which cases of violation of the EU public procurement Directives are 
published.  
Answer 
The Commission has brought Member States in several cases to the European Court of Justice for 
alleged violation of the public procurement di rectives. A press statement is generally used and 
published in the Commission newspages (http://europa.eu/rapid/ or under 
http://ec.europa.eu/internal_market/publicproc urement/infringements/cases/index_en.htm). 
 Question 25 (paragraph 190, page 78) 
For further consideration, please provide hard copies of "Case 199/85 Commission v Italy [1987] ECR 1039", "Case C-57/94 Commission v Italy [1995] ECR I-1249", "Judgment of the Court, 
3 May 1994, Case C-328/92 Commission v Spain [1995]  ECR I-1249" referred to in your answer as 
they are not available on the search engine "EURO Lex".  Are there no standards applied in determining "technical or artistic reasons" from an EU-wide point of view?  Are criteria for applying 
"technical or artistic reasons" for the procumbent procedure up to the Member States?  Has the EU 
issued any criteria in this regard in addition to this  Directive, or have any criteria been formed in the 
course of accumulation of specific cases?  If ther e are such criteria, please provide them.  If the 
criteria are included in any EU laws or regul ations, please provide the relevant provisions. 
 
Answer 
Cases of the European Court of Justice are accessible in the website of the European Court of Justice 
(http://curia.europa.eu/). 
The EU has provided sufficient explanations on the determination of "technical and artistic reasons". 
Article XV cases represented 4,5% of all the procurement covered by GPA. WT/TPR/M/248/Add.1 
Page 445 
 
 
  Question 26 (paragraph 190, page 78) 
1. Regarding "annexes I to X of Directive 2004/ 17/EC are indicative and non-exhaustive" in 
your answer, what are then the criteria for inserting contracting entities into the list of the annexes?  
Are they up to the Member States?  Has the EU issu ed any criteria in addition to this Directive, or 
have any criteria been formed in the course of accumulation of specific cases?  If there are such 
criteria, please provide them.  If the criteria are included in any EU laws or regulations, please provide 
the relevant provisions. 2. According to annexes II to X of Decision 2008/963 modifying the annexes of Directive 
2004/17/EC, there are no listed contracting entities of Greece for annex II; Cyprus and Malta for annex IV; Cyprus for annex V; Germany for annex VI; Belgium, Cyprus, Finland and Luxembourg 
for annex VII; Belgium, Cyprus, Latvia, Luxembour g and Malta for annex VIII;  and Cyprus for annex 
X.  Please provide the reasons for that.  Does this  mean that no entity operates in the sector of the 
missing Member States or any entities operate in such Member States but are not listed because of any specific reason?  If the answer is th e latter, what are the criteria to determine the entities to be listed?  
Is it up to the Member States?  Has the EU issued any criteria in this regard in addition to this 
Directive, or have any criteria been formed in the course of accumulation of specific cases?  If there 
are such criteria, please provide them.  If the criteria are included in any EU laws or regulations, please provide the relevant provisions. 3. According to the EU's reply to Question 36 fro m Canada, the EU does not need to "schedule" 
entities that are meant to follow the procurement ru les and insists that scheduling of entities would 
necessarily lead to less coverage.  Could the EU explain why it thinks that scheduling of entities 
would necessarily lead to less coverage? 
 
Answer 
1. As already explained, the lists of entiti es include all entities falling under the definitions 
included in the directives.  The Commission servic es establish the lists on the basis of the lists 
provided by Member States. 
2. The missing entities to which you refer are e ither in sectors which do not exist in a specific 
Member State or where utilities are not provided by  contracting entities in the meaning of this 
directive.  There is a contracting entity  provided for Greece in Annex II. 
3. The principle of definition-based coverage im plies that new public entities that fall in the 
scope of the definitions are automatically covered.  
Question 28 (paragraph 190, page 78) 
Please describe more details on the "infringement procedure to be launched by the European 
Commission" mentioned in your answer.  Does the Co mmission regard that the EU cannot ensure that 
foreign enterprises, especially non-EU enterprises, are treated in a non-discriminatory manner without 
establishing the infringement procedure?  Or has the EU  issued any criteria in this regard in addition 
to this Directive, or have any criteria been form ed in the course of accumulation of specific cases?  If 
there are such criteria, please provide them.  If the criteria are included in any EU laws or regulations, please provide the relevant provisions. 
 
Answer 
The Treaty of the European Union is based on th e principle of non-discrimination.  Please refer 
therefore to the existing case law and legisl ation on all matters covered by EU law. 
The principle of non-discrimination is extended to non-EU goods or service providers according to 
the international commitments  of the European Union. 
 
Question 29 (paragraph 190, page 78) 
Japan has understood that the decision on the applicab ility of the exclusion is taken by a procedure by 
the Commission. As for the "liberalization" men tioned in your answer, please describe define it with 
further details.  With respect to "the procedure" which Member States are requested to follow in order 
to realize that contracts concerned are not subj ect to Directive 2004/17, what kind of information WT/TPR/M/248/Add.1 
Page 446  
 
 needs to be provided to the European Commission and in what kind of format?  Are there any 
guidelines on this procedure or is it up to the Member  States?  Has the EU issued any criteria in this 
regard in addition to this Directive, or have any criteria been formed in the course of accumulation of 
specific cases?  If there are such criteria, please provi de them.  If the criteria are included in any EU 
laws or regulations, please provide the relevant pr ovisions.  In addition, please provide cases in which 
the Member States have excluded any contracting en tities concerned from the scope of the Directive, 
if they happened before.  
Answer 
Please refer to the existing legislation of sectoral liberalization, like electricity.  Further details can 
be obtained bilaterally. 
 Question 30 (paragraph 191, page 78) 
(As for answer 3) 
1. How is it determined whether or not "the r easons for the recourse of this procedure" are 
legitimate?  Are there clear standards for ex amining the appropriateness of such reasons? 
(As for answer 5) 2. Please provide specific cases in  which the application of this procedure was found to be 
illegal, unlawful or inappropriate based on this monitoring mechanism set up by the Commission? 
 
Answer 
1. The use of the accelerated procedures is limite d to "extreme urgency" and has to be justified 
in the contract notice.  Commission and Council considered that in the context of the financial crisis of 2008, there were grounds of "extreme urgency". 2. Specific cases cannot be provided without an  in-depth research as a ccelerated procedures 
have barely represented 2% of all procedu res in value and number between 2006 and 2010. 
 
Question 31 (paragraph 192, page 78) 
(As for answer 1) 
1. With regard to "some Member States may have a centralized purchasing policy whereas 
others may have a more decentralised purchasing pol icy", is procurement above  the thresholds liable 
to increase in Member States which have a centrali sed purchasing policy?  Doesn't this mean that 
much of the procurement of local governments in Member states which have a decentralised 
purchasing policy is excluded from the EU public procurement directives. 
2. Doesn't the EU think that the large differen ce in procurement above the thresholds resulting 
from a difference in policies among Member States c onstitutes a problem?  What measures is the EU 
taking? Does the EU have any plans to unify or  coordinate policies among the Member States that 
have centralized purchasing policies and the others  that have decentralized purchasing policies? 
Please also explain the reason why the EU is doing or not doing so. 
3. What is the basis for determining "cen tralized purchasing policy" or "decentralized 
purchasing policy"?  In particular, with regard to "decentralized purchasing policy", the application of 
standards for determining what amounts to decentr alized purchasing policy and the implementation of 
the EU Directives and the GPA may differ, depending upon a contracting authority within a particular 
Member State.  Has the EU taken any regulatory or systemic measures in order to avoid such 
circumstances and for ensuring the uniform applicat ion of standards and uniform implementation in 
such Member States? 
Answer 
1. The EU public procurement directives are very strict in determining that no contracting 
authority can split contracts with the intent of avoi ding the application of the EU public procurement 
directives. WT/TPR/M/248/Add.1 
Page 447 
 
 
  It may happen that, short of centralized purchasing, contracts concluded by local entities are de facto 
below the directives thresholds and are therefore not  subject to the full harmonized regime imposed 
by them.  It does not mean that these contracts are excluded from the scope of the directive on the basis of a special carve out.  2. These differences are not a problem.  Purc hases with a low value do neither economically 
justify the cost of public procurement procedures,  nor do they raise the interest of international 
service providers and suppliers, which have to cope w ith for instance transport costs.  Although the 
Commission may encourage the use of central purchasing bodies, it is not up to the Commission to interfere in the administrati ve structure of Member States.  
3. Budgetary expenditure in Member States refle cts the competences pr ovided to the several 
layers of government by national constitutions, as in  all the other countries of the world.  Member 
States' decision to determine the exact purchaser of  specific goods and services falls outside the remit 
of public procurement policy. 
 
Question 32 (paragraph 193, page 80) 
(as for answer 2) 
1. We understand that "a total value of 12 b illion EURO" (awarded to suppliers originating 
from non-EU GPA signatories) comes from the statis tics of the EU submitted to the WTO in 2007, in 
which the EU provided a "minimum estimated to tal 11,046,029,000 EUR/ maximum estimated total 
12,958,438,000 (see attachment)".  If the EU has  this established methodology of statistics as 
explained, why does the EU only provide "estimates " in a range between a minimum estimated total 
amount and a maximum estimated total amount, and not a more precise figure? 
2. If a company has more than one headquarters in  and out of the EU, on the basis of which 
does EU calculate these figures? 3. According to the Table, the numbers of c ontracts in Transport equipment, Telecom services 
and equipment are limited to one or two digits.  To  what does the EU attribute these reduced numbers 
in each Category?  
Answer 
1. The range is simply due to the fact contra cting authorities in some instances do not provide 
the value of the contract awarded but the value of highest and lowest bid submitted.  The best 
estimator is therefore the average of the two values, which remains in the area of 12 billion EUR, as 
the EU statement indicated. 
2. This matter is very technical and can be  discussed on a bilateral basis.  Companies have 
more than one headquarter in exceptional cases.  If needed, the EU can share on a bilateral basis 
with Japan the underlying data. 3. In the table, please refer to the 2-digit he adings of the Common procurement vocabulary as 
defined by Regulation 2195/2002.  The titles were cho sen to illustrate in plain language the main 
purchases (as provided by the underlying codes). 
 
Question 33 (paragraph 195, page 80) 
(As for answer 1) 
According to the "Breakdown Annex" in the statisti cs of the EU submitted to the WTO in 2007, some 
central government authorities in Annex 1 are not cove red by the GPA.  Isn't this also the reason for 
the gap between the coverage of the GPA and that of  the Directives, though the t fact that "the EU's 
commitments under the GPA result from negotiati ons with other GPA members, based on 
reciprocity." should be taken into account?  Why are some central government authorities not covered 
by the GPA?  Answer 
EU commitments in Annex 1 to the GPA are ba sed on an exhaustive list.  As a result, some 
contracting authorities of the central government covered by the EU public procurement directives WT/TPR/M/248/Add.1 
Page 448  
 
 are currently not covered by GPA.  The EU may ext end coverage of Annex 1 into a generic coverage 
on the condition of reciprocity. 
Question 34 (paragraph 196, page 81) 
1. As for the first aspect, what are the standards for determining that a particular member of the 
review body has the "status of judge"? 
2. As for the second aspect, what are the standard s for determining that "the review process is 
not performed by the same contracting authority/ entity"?  Please provide examples for administrative 
review bodies of the Member States which comply with this second aspect. 3. How does the EU ensure that administrative review bodies of the Member States comply with such aspects? 
 
Answer 
These  matters are very technical and can be discussed on a bilateral basis. 
Question 35 (paragraph 196, page 81) 
(As for answer 2 ) 1. Please clarify the remedy measures or the remedy systems in the major EU Member States 
(Germany, France, the Netherlands, Italy, Belgium a nd the U.K.) with respect to contracts other than 
contracts outside the scope of the EU Utilities or Public Sector Directives or contracts in violation of the GPA.  Is it possible for the EU to interv ene in cases where an EU entity seeks remedies for 
contracts outside the scope of such EU Directives  and such an entity did not receive justifiable 
remedies? 
(As for answer 3) 
2. Why are data such as the status of r eceipts and reviews of complaints unavailable? 
 
Answer 
These matters are very technical and can be discussed on a bilateral basis. 
 
Question 36 (paragraph 197, page 81) 
1. The list provided in response to Question 35. 1 is understood to refer to the review bodies 
established based on the GPA.  Does the same lis t apply to a list of the review bodies that are 
established and in which a review is initiated in accordance with the Remedies Directive and a list of 
national courts in which a judicial review is initia ted in accordance with the Remedies Directive?  A 
document previously received from the EU that refe rred to the review bodies described that Hungary, 
Poland, Denmark and the Czech Re public and Cyprus have an ad ministrative review body(ies), 
respectively.  However, the list provided under the response to Question 35.1 does not appear to include administrative review bodies for the Czec h Republic and Poland.  Please explain this 
difference.  Furthermore, for the Member States having administrative review bodies, please clarify 
which of the three aspects as exemplified in Paragrap h 3 of the response to Question 34 is met by the 
relevant administrative review body.  2. Regarding the EU's Answer 2, Japan unders tands that Directive 2007/66/EC has just been 
transposed by Member States and the EU is currently not in a position to provide answers to all of the 
questions posed by Japan.  Japan, therefore, limits its requests to the EU to questions which can be 
answered without knowing the result of the curre nt inquiry mentioned in the EU's answer. 
(1) As major EU Member States (Germany, Fr ance, the Netherlands, Italy, Belgium and 
the U.K.) have transposed the Remedies Directiv e into various national legislation which took 
effect at the latest within the first quarter of 2010, there thus should be some accumulation of 
operational data.  In light of the EU's respon ses explaining that "the Commission is currently 
checking the implementing measures notified by Member States" and "such data are currently 
not available" in response to Question 35.3, do es this mean that the EU has no understanding 
of, or information as to the operational status a nd the enforcement situations of the Remedies WT/TPR/M/248/Add.1 
Page 449 
 
 
  Directive by the Members States at all?  The response to Question 34 provides an overview of 
the Remedies Directive.  Accordingly, please indicate how the EU ensures that the Member 
States have appropriately implemented or are appropriately applying such aspects of the 
Remedies Directive as described in the response to Question 34. (2) According to the section entitled "Impleme ntation" in the Remedies Directive, the 
Member States have an obligation on an a nnual basis to report to the Commission with 
respect to specific cases in which, based on Ar ticle 2d.3 of the Remedies Directive, a review 
body finds "overriding reasons relating to general interests relating to a general interest" and 
accordingly may not have considered an illegal dir ect-awarded contract ineffective.  At least 
for the major EU Member States referred to in  the above, please provide their reports, and if 
such reports do not exist, please state so. 
(3) The section entitled "Review" in the Reme dies Directive states that the Remedies 
Directive shall be reviewed no later than Decemb er 20, 2012.  Is it correct to understand that 
the EU will not undertake any review of the Remedies Directive until such date?  
(4) Article 2b of the Remedies Directive lists certain situations by which Member States 
may provide for derogation from the application of Standstill. 
(a) With respect to providing for derogation from Standstill as applying Items (a) to (c), are the standards left to the discretion of Member States, or are there any standards specified by the EU elsewh ere other than in this Directive?  
(b) Article 2b, Item (b) provides for a situation in which the tenderer who is awarded the contract is the sole tenderer.  However, the Remedies Directive does not 
require that a person applying for a review has tendered in terms of eligibility for a 
review.  In the case that Standstill is not  applied on the grounds that the tenderer who 
is awarded the contract is the sole te nderer, will a person who did not tender be 
deprived of the right to a review, which is fundamentally granted under the remedies 
measures of this Directive? 
(c) Article 2b, Item (c) provides for cas es for a "framework  agreement" and 
"dynamic purchasing system".  Please provide the reasons as to why derogation from Standstill may be made available for these procurement methods. 
 
Answer 
These matters are very technical and can be discussed on a bilateral basis. 
 
Question 37 (paragraph 198, page 81) 
1. With regard to the EU's answer which expl ains that "[i]n 2007, 948 million EUR of contracts 
have been awarded to companies from other GPA pa rties by railway operators", Japan would like the 
EU to offer concrete grounds.  Specifically, what  operators correspond to the railway operators 
mentioned here? Japan would like the EU to pr ovide a list of railway operators in the EU. 
2. The EU didn't answer Japan's question "pl ease indicate the standards used for determining 
which particular supplier has been specified as a " non-EU supplier" with regard to such statistics." 
Does this mean that the EU does not have such statistics?  If there is a reason why the EU cannot 
publish them, Japan would like the EU to provide that reason. 3. Japan would like to reiterate its request th at the EU provide Japan with the corresponding 
statistics from each Member State on the number and the amount of contracts. 
 
Answer 
1. The coverage of railway operators is defined  by Article 5 (1) of Directive 2004/17/EC which 
foresees that: 
"This Directive shall apply to activities relating to the provision or operation of networks providing a 
service to the public in the field of transport by ra ilway, automated systems, tramway, trolley bus, bus 
or cable.  WT/TPR/M/248/Add.1 
Page 450  
 
 As regards transport services, a network shall be c onsidered to exist where the service is provided 
under operating conditions laid down by a competent authority of a Member State, such as conditions 
on the routes to be served, the capacity to be made available or the frequency of the service." 
Annex IV to Directive 2004/17/EC as ame nded by Decision 2008/963 provides the following 
indicative list: 
 
Belgium  
— SNCB Holding/NMBS Holding  
— Société nationale des Chemins de fe r belges//Nationale Maatschappij der  
Belgische Spoorwegen.  
— Infrabel  
Bulgaria  
— Национална  компания  ‘Железопътна  инфраструктура '  
— ‘Български  държавни  железници ' ЕАД   
— ‘БДЖ  — Пътнически  превози ' ЕООД   
— ‘БДЖ  — Тягов  подвижен  състав  (Локомотиви )' ЕООД   
— ‘БДЖ  — Товарни  превози ' ЕООД   
— ‘Българска  Железопътна  Компания ' АД  
— ‘Булмаркет  — ДМ' ООД   
Czech Republic  
All contracting entities in the sectors whic h supply services in the field of rail  
services defined in the section 4 paragr aph 1 letter f) of Act No 137/2006 Coll.  
on Public Contracts, as amended.  
Examples of contracting entities:  
— ČD Cargo, a.s.  
— České dráhy, a.s  
— Správa železni ční dopravní cesty, státní organizace  
Denmark  
— DSB  
— DSB S-tog A/S  
— Metroselskabet I/S  
Germany  
— Deutsche Bahn AG.  
— Other undertakings providing railway services to the public pursuant to  
Article 2(1) of the Allgemeines Eise nbahngesetz of 27 December 1993, as  
last amended on 26 February 2008.  
Estonia  
— Entities operating pursuant to Article 10( 3) of the Public Procurement Act  
(RT I 21.2.2007, 15, 76) and Article 14 of the Competition Act (RT I 2001,  
56 332).  
— AS Eesti Raudtee;  
— AS Elektriraudtee.  
Ireland  
— Iarnród Éireann [/Irish Rail]  
— Railway Procurement Agency  
Greece  
— ‘Oργανισμός  Σιδηροδρόμων  Ελλάδος  Α.Ε.' (‘Ο.Σ.Ε. Α.Ε.'), pursuant to Law  
No 2671/98.  
— ‘ΕΡΓΟΣΕ  Α.Ε.' pursuant to Law No 2366/95.  
Spain  
— Ente público Administración de Infr aestructuras Ferroviarias (ADIF).  
— Red Nacional de los Ferrocarriles Españoles (RENFE).  
— Ferrocarriles de Vía Estrecha (FEVE).  
— Ferrocarrils de la Generalitat de Catalunya (FGC).  
— Eusko Trenbideak (Bilbao).  
— Ferrocarrils de la Generalitat Valenciana. (FGV).  
— Serveis Ferroviaris de Mallorca (Ferrocarriles de Mallorca).  
— Ferrocarril de Soller  
— Funicular de Bulnes  
France  
— Société nationale des chemins de fer fr ançais and other rail networks open to  
the public, referred to in Loi d'orientation des transports intérieurs no 82-1153  
of 30 December 1982, Title II, Chapter 1.  
— Réseau ferré de France, State-owne d company set up by Law no 97-135 of  
13 February 1997.  
Italy  
— Ferrovie dello Stato S. p. A. including le Società partecipate  
— Entities, companies and undertakings providing railway services on the basis  
of a concession pursuant to Article 10 of Royal Decree No 1447 of 9 May  WT/TPR/M/248/Add.1 
Page 451 
 
 
  1912, approving the consolidated text of  the laws on le ferrovie concesse  
all'industria privata, le tramvie a trazione meccanica e gli automobili  
— Entities, companies and undertakings providing railway services on the basis  
of a concession pursuant to Article  4 of Law No410 of 4 June 1949 —  
Concorso dello Stato per la riattivazion e dei pubblici servizi di trasporto in  
concessione.  
— Entities, companies and undertakings or  local authorities providing railway  
services on the basis of a concession pursuant to Article 14 of Law 1221 of  
2 August 1952 — Provvedimenti per l'eser cizio ed il potenziamento di  
ferrovie e di altre linee di trasporto in regime di concessione.  
— Entities, companies and undertakings pr oviding public transport services,  
pursuant to articles 8 and 9 of the decreto legislativo No422 of  
19 November 1997 — Conferimento alle  regioni ed agli enti locali di  
funzioni e compiti in materia di trasporto pubblico locale, a norma dell'ar-  
ticolo 4, comma 4, della L. 15 marzo 1997, n. 9 — as modified by decreto  
legislativo No400 of 20 Se ptember 1999, and by article 45 of the Legge  
No166 of 1 August 2002.  
Cyprus  
Latvia  
— Valsts akciju sabiedr ība ‘Latvijas dzelzce ļš'.  
— Valsts akciju sabiedr ība ‘Vaiņodes dzelzce ļš'.  
Lithuania  
— Akcinė bendrovė ‘Lietuvos geležinkeliai'  
— Other entities in compliance with the requi rements of Article 70 (1, 2) of the  
Law on Public Procurement of the Republic of Lithuania (Official Gazette,  
No 84-2000, 1996; No 4-102, 2006) and operating in the field of railway services  in accordance with the C ode of Railway Transpo rt of the 
Republic of Lithuania (Offici al Gazette, No 72-2489, 2004).  
Luxembourg  
— Chemins de fer luxembourgeois (CFL).  
Hungary  
— Entities providing rail transport services  to the public pursuant to Articles  
162-163 of 2003. évi CXXIX. törvény a közbeszerzésekr ől and 2005. évi  
CLXXXIII. törvény a vasúti közlekedésr ől and on the basis of an authori-  
sation pursuant to 45/2006. (VII. 11.) GKM rendelet a vasúti társaságok  
működésének engedélyezésér ől.  
For example:  
— Magyar Államvasutak (MÁV)  
Malta  
Netherlands  
Procuring entities in the field of railway services. For instance:  
— Nederlandse Spoorwegen  
— ProRail  
Austria  
— Österreichische Bundesbahn.  
— Schieneninfrastrukturfinanzierungs-Gesellschaft mbH sowie.  
— Entities authorized to provide transport services pursuant to Eisenbahngesetz,  
BGBl. No 60/1957, as amended.  
Poland  
Entities providing rail transport services, operating on the basis of ustawa o  
komercjalizacji, restruktury zacji i prywatyzacji przedsi ębiorstwa pa ństwowego  
‘Polskie Koleje Pa ństwowe' z dnia 8 wrze śnia 2000 r.; including among others:  
— PKP Intercity Sp, z o.o.  
— PKP Przewozy Regionalne Sp. z o.o.  
— PKP Polskie Linie Kolejowe S.A.  
— ‘Koleje Mazowieckie — KM' Sp. z o.o.  
— PKP Szybka Kolej Miejska w Trójmie ście Sp. z ο.ο.  
— PKP Warszawska Kolej Dojazdowa Sp. z o.o.  
Portugal  
— CP — Caminhos de Ferro de Portugal, E.P., pursuant to Decreto-Lei  
No 109/77 do 23 de Março 1977.  
— REFER, E.P., pursuant to Decreto-Lei No 104/97 do 29 de Abril 1997.  
— RAVE, S.A., pursuant to Decreto-Lei No 323-H/2000 of 19 de Dezembro  
2000.  
— Fertagus, S.A., pursuant to Decr eto-Lei 78/2005, of 13 de Abril.  
— Public authorities and public undertak ings providing railway services  
pursuant to Lei No 10/90 do 17 de Março 1990.  
Romania  
— Compania Na ţională Căi Ferate — CFR  
— Societatea Na ţională de Transport Feroviar de Marf ă ‘CFR — Marf ă', —  
Societatea Na ţională de Transport Feroviar de C ălători ‘CFR — C ălători'  
Slovenia  
 WT/TPR/M/248/Add.1 
Page 452  
 
 Mat. št. Naziv POŠTNA ŠT. KRAJ 
5142733 Slovenske železnice, d. o. o. 1000 LJUBLJANA  
Slovakia  
— Entities operating railways and cable wa ys and facilities related thereto  
pursuant to Act No. 258/1993 Coll. in wording of Acts No. 152/1997  
Coll. and No. 259/2001 Coll.,  
— Entities, which are carriers providing for railway transport to the public under  
the Act No. 164/1996 Coll. in wording of Acts No. 58/1997 Coll.,  
No. 260/2001 Coll., No. 416/2001 Coll. and No. 114/2004 Coll. and on  
basis of governmental decree No. 662 of 7. July 2004.  
For example:  
— Železnice Slovenskej republiky, a.s.  
— Železni čná spoločnosť Slovensko, a.s.  
Finland  
VR Osakeyhtiö//VR Aktiebolag  
Sweden  
— Public entities operating railway servi ces in accordance with järnvägslagen  
(2004:519) and järnvägsförordningen  (2004:526). — Regional and local  
public entities operating regional or local railway communications pursuant  
to lagen (1997:734) om ansvar för viss kollektiv persontrafik.  
United Kingdom  
— Network Rail plc  
— Northern Ireland Transport Holding Company  
— Northern Ireland Railways Company Limited  
— Providers of rail services which operat e on the basis of special or exclusive  
rights granted by the Department of Transport or any other competent  
authority.  
 
In general, Annex IV covers ther efore railway operators but also infrastructure institutions.  It is 
important to underline that urban  railway activities are covered und er Annex V of the same Directive 
and fall in the scope of the GPA and its general notes.   Under this activity one finds most notably the 
RER of SNCF and the S-Bahn activities of Deutsche Bahn. 
 
In some cases, a contracting authority of Annex 1 (central government) or Annex 2 (regional or local 
contracting authority, body governed by public la w) may award a contract on behalf of railway 
operators.  In this case, the Annex 1 or Annex 2 en tity will be considered as an Annex 3 entity.  In the 
UK, for instance, the Department of Transport has pu rchased trains on behalf of train operators.  It 
has done so in the capacity of an Annex 3 entity  – although it is listed as an Annex 1 entity.  
The EU can provide additional details in this area on a bilateral basis. 2. The EU has already explained that this wa s done on the basis of the headquarters of the firm 
in question. If needed, the EU can share on a bilateral basis with Japan the underlying data. 
3. GPA statistical obligations do not provide for breakdowns of cross-border procurement.  The 
EU is ready to share its breakdowns  on a bilateral basis with Japan. 
 
Question 38 (paragraph 199, page 81) 
1. What is the definition of "non-national" here?  Is it the same as "not incorporated in an EU 
Member State"?  If it means "not incorporated in an EU Member State", what is the difference from 
"not established in any of the Memb er States of the European Union"? 
2. How should the EU's answer to Question 38 be understood in relation to Question 32? (the 
figures are calculated on the basis of the location of the headquarters) 3. If the notions of "non-EU bidders" and of "Sup pliers from third countri es" have legal standing 
in the EU, please specify the relevant provisions.   Answer 
1-3. The EU has provided sufficient explanati ons on this matter.  Additional technical 
explanations can be provided through experts on a bilateral basis. 
 WT/TPR/M/248/Add.1 
Page 453 
 
 
  Question 40 (paragraph 204-206, page 83) 
1. It is understandable that the split-ups are monitored and can be remedied after-the-fact 
through a complaint filed in a review body.  Howe ver, are there any monitoring systems as such for 
preventing the split-ups from occurring?  Please indi cate the standards for determining the existence 
or non-existence of infringement relating to split-ups.  Please provide us with specific cases in which 
particular split-ups were found to be illegal b ased on a complaint filed in a review body. 
2. Could the EU indicate examples of contracts awarded to non-EU bidde rs with sub-contracts 
to (EU or non-EU) SMEs as well as the ones awarded to EU bidders with sub-contracts to non-EU SMEs?  
Answer 
1. This matter can be discussed further bilaterally. 
2. This data is not available.  Question 42 (paragraph 205-206, page 83) 
According to the EU's reply to Question 5 of th e Republic of Korea, in the area of public works 
concessions, the contracting authority may require th e concessionaire to sub-contract a minimum of 
30 % of the total value of the work to third parties. 1. Please specify where this provision is stipulated. 2. Is this figure (30%) fixed specifically for th e area of public works concessions?  Is there any 
other areas where higher percentages are set for sub-contracts? 3. When the EU covers public works concessions in  the GPA in the future, will it continue with 
this current policy? 
 
Answer 
1.-3. The relevant provisions can be found in Directive 2004/18/EC.  Should the EU include works 
concessions in its future GPA commitments, this would be done on the basis of national treatment (see 
EU's second revised offer).  
 Question 51 (paragraph 196, page 81) 
The primary concern described in this question is  NOT whether the EU took sufficient action to 
comply with the recommendations and rulings of the DSB or whether the EU's tariff treatment of FPD 
is consistent with its commitment pursuant to the IT A.  Japan's concern here is that, as a matter of 
competition or trade policy, distinguishing significan tly in the tariff treatment of products competing 
in a single market, i.e., granting duty-free treatment to monitors that are solely or principally used 
with ADP machines, as opposed to imposing 14% duties on ot her monitors, will distort fair 
competition in the market.  Japan would like to  ask for the EU's views in this respect. 
 Answer 
The European Union recalls that tariff treatment may always have an impact on competition in the 
market between products that are subject to different cu stoms duties.  However, this is not a reason to 
force the extension of duty-free trea tment to products that do not correspond to the description of the 
tariff heading benefiting from such treatment.  WTO Members are allowed to impose customs duties 
as long as they do so in a manner consistent w ith their WTO obligations, more particularly, their 
tariff schedules.  Those schedules are a result of reciprocal concessions.  Regarding flat panel 
displays (FPDs), the EU ensures that those FPD s that are covered by the WTO Information 
Technology Agreement (ITA) benefit from duty- free t reatment.  The fact that the ITA covers certain 
products and not others should not per se be read as giving rise to unfair competition.  The appropriate mechanism to extend those obligations to  other products is the renegotiation of the ITA.  
 WT/TPR/M/248/Add.1 
Page 454  
 
 CANADA 
1. Follow up to question 62 
Can the EU clarify what were the duties as a result of  the application of Headnote 6 prior to the time 
period in the WTO Secretariat's report (for the listed cereals)? 
 
Answer  
Duties are fixed by means of a Commission regulatio n and published in the Official Journal twice a 
month.  We invite Canada to consult the EUR- Lex website (http://eur-lex.europa.eu), where all 
legislation can be found.  For instance, Commission Regulation (EC) No 1562/2007 of 21 December 2007 fixed the import duties in the cereals sector applicable from  1 January 2008 (Official Journal L 340/29).  
 
IV. DEVELOPMENTS IN SELECTED SECTORS 
(2) T
RADE IN SERVICES  
(iii) Transport 
Paragraph 75, page 125 
 2. Follow up to question 65 
What is the EU doing to open its marine services ma rket to foreign vessel owners/operators in support 
of its plans to enhance the use of marine tran sportation in inland and ocean waters, other than 
negotiating free trade agreements (ref. answer to question 65)?  
 
Answer 
In order to promote waterborne transport in the EU, different measures have been adopted or are 
underway in order to eliminate obstacles and redu ce administrative burdens for shipping companies. 
This includes e.g. the adoption of the Directive 2010/65/EU on reporting formalities for ships arriving 
in and/or departing from ports of EU Memb er States, which simplifies and harmonizes the 
administrative procedures for example through the establishment of national single windows to 
reduce the number of intervening parties at ports.  At  current, EU is working to establish a Blue Belt, 
where intra-EU maritime transport ca n be operated with as little admin istrative burden as possible, 
and "Blue Lanes" (i.e. fast-track procedures) will be  created in ports for Community goods to ensure 
their speedy transit.  It is important to underline that the "Blue Belt"  and related measures applies to all vessels regardless 
of their flag.  Non-EU flagged vessels will therefo re benefit equally from the initiatives that promote 
further use of waterborne transport in the EU.  
 IV. DEVELOPMENTS IN SELECTED SECTORS (2) T
RADE IN SERVICES  
(iii) Transport 
(c) Maritime transport 
Paragraphs 86-89, pages 128-129: 
 3. Follow up question  
Given on-going free trade negotiations, is it the EU 's intention to promote increased foreign vessel 
participation in member state cabotage markets or is  this policy left to each individual member state?  
 Answer 
The Council Regulation (EEC) No 3577/92 lays dow n the minimum requirements concerning the 
opening of cabotage market.  The EU Member States a re free to decide to open their cabotage market WT/TPR/M/248/Add.1 
Page 455 
 
 
  more widely than the Regulation requires.  Currently the Commission does not envisage any 
particular actions to promote increased participa tion of non-EU vessels in maritime cabotage.  
 4. Follow up to question 68  
Can the EU list the member states that have op ened their cabotage market to foreign vessel 
participation (ref. answer to question 68)?  
 
Answer  
According to the information transmitted by th e Member States to the European Commission on a 
voluntary basis, Belgium, the Netherlands, Denma rk, the United Kingdom and Latvia do not have any 
restrictions concerning their cabotage markets for third country vessels.   
5. Follow up to questions 66, 67, 68, 69, 70, 71, 72, 73, 74, 75 
Several answers refer to regulations or other documen ts.  Would it be possible to obtain either a copy 
or a link to each of the documents referred to in questions 66, 67, 68, 69, 70, 71, 72, 73, 74, 75?  
 Answer 
Please find attached the link to the Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide ser vices to maritime transport within Member States 
(maritime cabotage), OJ L 364, 12.12.1992: http://eur-lex.europa.eu/LexUriServ 
/LexUriServ.do?uri=CELEX:31992R3577:en :html and to the Community guidelines on State aid to 
maritime transport (OJ C 13, of 17.01.2 004): http://eur-lex.europa.eu/LexUriServ 
/LexUriServ.do?uri=OJ:C:2004:013:0003:0012:en:pdf. 
 
UNITED STATES 
 
Question 7  (Regarding notifying the EPAs) 
We appreciate the EU's assurance that notifica tion of the EPAs will occur once these Agreements 
have been ratified by the Parties, and by the time th ey enter into force.  However, Paragraph 3 of the 
Transparency Mechanism for Regiona l Trade Agreements states that: "As a rule, it [notification] will 
occur no later than directly following the parties' ratification of the RTA or any party's decision on 
application of the relevant parts of an agreement, and before the application of preferential treatment 
between the parties."  Could the EU explain the exte nt to which preferential treatment is already being 
applied with regard to the non-notified EPAs? 
 
Answer 
Preferential treatment is being applied as from  1 January 2008 under the Market Access Regulation 
(Council Regulation (EC) No 1528/2007 of 20 D ecember 2007) to ACP countries or regions which 
have concluded Economic Partnership Agreements ne gotiations meeting the requirements of Article 
XXIV GATT 1994 ("interim EPAs").  The Market Access Regulation grants advanced provisional application of Economic Partnership Agreements pe nding the completion of approval procedures by 
all parties. 
 
Question 8 
In its answer, the EU states that national courts "may" submit questions to the Court of Justice where 
there is a question of interpretation or validity of EU  law.  However, the EU also states that national 
courts "must refer a matter to the Court of Justi ce in cases of doubt regarding a European provision." 
1) Please explain the difference between the discretionary decision to refer a question of 
interpretation and the mandatory obligation to refer a matter in the case of doubt regarding a European 
provision.  2) How is the mandatory obligation to refer ma tters to the Court of Justice "in cases of doubt" 
enforced on national courts?  What measures are ava ilable to compel the national court to refer the 
matter? WT/TPR/M/248/Add.1 
Page 456  
 
 3) Does the Court of Justice have jurisdiction to resolve conflicting decisions issued by different 
national courts, including where there is no question of  interpretation or validity of EU law?  If the 
Court assumes jurisdiction in such a scenario, is a referral mandatory or discretionary? 
 
Answer 
1) A reference to the Court would not be c onsidered necessary (discreti onary decision to refer) 
only if the Court of Justice of the Union has either already ruled on the question at issue or the matter 
is reasonably clear and free from doubt.  If the meaning of a provision is clear,  not open to ambiguity, 
then no question of interpretation would arise.  No  requirement for interpretation implies that there 
will be no requirement for a reference  
In all other instances, th e national court or tribunal has discre tion on whether to refer the question if 
it considers that a decision on the question of Community law is necessary to enable it to give 
judgment.  In this regard, for instance, a national  court or tribunal is not precluded from making a 
reference because the Court of Justice has ruled on a similar question raised by a different court.  
In any even, the Court of Justice has hedged this notion of certainty with several qualifications.  In 
CILFIT, it ruled that national court must be convin ced that "the matter is equally obvious to the 
courts  of the other Member States and to the Court of Justice only if those conditions are satisfied 
may the national court or tribunal refrain from s ubmitting the question to the Court of Justice and 
take upon itself the responsibility of resolving it." (CILFIT case, para. 16).  We therefore could conclude that CILFIT allows little or  no room for national courts of  final instance for the exercize of 
judgment as to whether a question must be referred. 
2) The consequence of a failure by a national cour t or tribunal to refer could take two forms.  
On one hand, the Commission could initiate infringement proceedi ngs against a Member based on the 
breach of the obligation to refer by the judiciary.  On the other hand, a non-referral could hold the Member State liable in damages to an individual a ccording to the principle of state liability.  
3) The Court of Justice is not strictly speaking a court of appeal of decisions taken by national 
courts.  It can settle disputes between Member St ates, between EU institutions and Member States, 
between different EU institutions and between EU in stitutions and companies or individuals.  In that 
regard, the Court of Justice provides the judicial safeguards to ensure that the law is observed in the 
interpretation and application of the Treaties and in all of the activities of the Union. 
 
Question 11 
The EU states that where Member States are unable to agree on the uniform customs classification of 
a product, the Commission may propose classification regulations or explanatory notes to the Combined Nomenclature. 1) Please explain the procedure and process by which the proposal is made.  2) The EU states that during the last five y ears, 122 classification regulations were published.  
How many Explanatory Notes have been published?  How does an Explanatory Note ensure uniform 
application given that Explanatory Notes are not legally binding?   
Answer 
1) The procedure to propose classification re gulations or explanatory notes is described in 
Article 9 and 10 of the Council Regulation (E EC) No 2658/87 on the tariff and statistical 
nomenclature and on the Common Customs Tariff.  
2) The Explanatory Notes were established by Council Regulation (EEC) No 2658/87. The Explanatory Notes to the CN are considered to be an important aid for interpreting the scope of 
the various tariff headings but do  not have legally binding force.  
However, the Court of Justice of the European Union has ruled several times according to the 
following: "…customs authorities are obliged to i ssue binding tariff informations that are in 
conformity with the Explanatory Not es to the Combined Nomenclature…"  
Example: in Article 2 of the Joined Cases C- 288/09 and C-289/09 published in the EU Official 
Journal C 179 of 16 June 2011. WT/TPR/M/248/Add.1 
Page 457 
 
 
  A consolidated version of the EU's Combined Nomenclature Explanatory notes has been recently 
published (EU Official Journal C 137 of 6 May 2011 ).  Since then, two new explanatory notes have 
been published.  Question 14 
In its answer, the EU states that the proposed origin marking scheme would not apply to the 
enumerated non-EU countries, "owing to the existin g agreements between the EU and the relevant 
parties", but the response does not include the provisi ons of these agreements that require this result, 
as we originally requested.  Please provide these provisions. 
 
Answer 
A customs union has been established between the EU and Turkey (see notably Decision No 1/95 of 
the EC-Turkey Association Council);  the prohibitio n of quantitative restrictions on imports and all 
measures having equivalent effect constitute an essential part of this customs union and shall be 
interpreted for the purposes of their implementa tion and application to products covered by the 
customs union, in conformity with the relevant deci sions of the (now) Court of justice of the European  
Union, which rule out origin marking from EU Member States (see Articles 5, 7 and 66 of Decision 
No 1/95). The same goes in relation with the free trade area  established by the EEA Ag reement (see Articles 6, 
11 and 13 of the EEA Agreement). 
 
Question 33 
Does the reference in the Secretariat's report to th e "different structures of the public sector (and its 
spending power) in the respective member States" re fer only to the centralized versus decentralized 
purchasing policies?  Please explain how the maintena nce of a centralized versus a decentralized 
purchasing policy affects the publication of notices.  Please also explain why some Member States 
publish notices for as little as 7.1 per cent of their procurement. 
 
Answer 
Of the 250 000 different contracting authorities an d entities involved in public procurement in the 
EU, only about 35 000 publish a notice in the OJEU in any one year.  Most of the smaller authorities 
may never make a purchase large enough to fall within  the scope of the Directives.  The degree of 
centralisation also varies enormously across Member States, in accordance with their own 
administrative organisation.  In addition, some Member States (Italy for instance with CONSIP) have put into place centralised purchasing systems. 
 
__________