WORLD TRADE  
ORGANIZATION   
WT/REG296/2 
14 June 2012 
 (12-3126) 
Committee on Regional Trade Agreements Original:   English/ 
 Spanish 
 
 
 
FREE TRADE AGREEMENT BETWEEN THE EUROPEAN UNION AND THE 
REPUBLIC OF KOREA, GOODS AND SERVICES (GOODS & SERVICES) 
 
Questions and Replies 
   The following communication, dated 13 June 2012,  is being circulated at the request of the 
delegations of the European Union and the Republic of Korea.  
_______________ 
 
 This document reproduces the questions addressed to the Parties and the responses submitted.  
Questions from the Delegation of Australia 
 
1. Korea's cross border trade in services commitments appear to  be scheduled in a manner 
similar to GATS commitments, but the EU sch edule does not differentiate between market 
access and national treatment commitments.   
 Why do Korea and the EU use different scheduling approaches in Annex 7 on market 
access and national treatment for services?  
  The EU schedule does not differentiate between market access and national treatment 
commitments as some of the listed reservations have a mixed character, i.e. they relate to both market access and national treatment reservations.  The EU  believes that the EU approach to scheduling 
commitments in the EU-Korea FTA enables a focu s on the substance of commitments and thus 
ensures adequate clarity.  
2. MFN for services and investment only apply to  agreements signed after the entry into 
force of the EU-Korea FTA.  Why has the EU scheduled an MFN exemption for future 
liberalizations under a ratchet mechanism in future agreements?  
 As ratchet mechanisms simply bind the ex isting level of market openness and, as 
services are generally regulated on a non-discrimina tory basis, what kind of measures is the EU 
trying to protect by scheduling this MFN exemption?  
 The EU-Kor ea FTA includes an MFN exemption to saf eguard future liberalization under a 
ratchet mechanism in subsequent trade agreements. 
3. The cross-border trade in services provisions of  the Agreement appear to allow local 
presence requirements as a legitimate condition of providing cross-border trade in services.  
With the development of electronic communicati ons, particularly the internet, pure Mode 1 
service delivery is becoming increasingly common and local presence requirements are 
therefore a significant barrier.   WT/REG296/2 
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   Can Korea and the EU explain the treatm ent of local presence requirements in this 
Agreement?  
 [No response provided]. 
4. As set out in Article 7.26 of the Agreement, Korea and the EU have three years from the 
date of entry into force of the Agreement to ne gotiate principles of the regulatory framework 
for postal and courier services.  
 Can Korea and the EU explain this provision and its intended outcome, given postal and 
courier service suppliers are already operating  in both markets and therefore a regulatory 
framework already exists?  
 
 For example, is the intention to develop a common framework that applies to Korea and 
the EU?  
 As footnote 31 (Article 7.26) implies that Korea will not change its existing regulatory 
framework, is the assumption that the EU wo uld change its framework for private delivery 
services?  
 The EU is an advocate of liberalization in postal and courier market.  Due to historic 
developments, these sectors were often operated by the state and are currently fully or partially 
operated by local incumbents.  If and when liberalisation takes place, it is important to ensure that anti-competitive practices are avoided, and this is the aim of the future regulatory text to be developed 
in the review of Article 7.26.  The aim of EU is  to agree on common definitions such as postal item, 
independent regulator, universal service and licence and on minimum obligations to ensure 
competitive environment and transparency. EU has highlighted its concerns in sectoral proposal 
S/CSS/W/61 as well as concluded a regulator y chapter on postal and courier services in EU-
Cariforum EPA that can serve as example of EU aspirations.  The regulatory chapter only applies 
where market access commitments are taken. 
 
5. How does Annex 2-B to Article 2.14 (the sectoral  annex on electronics) interoperate with 
the TBT agreement?  
 The TBT Agreement provides for multilateral commitments in the WTO context, which are 
also applicable of course between the EU and Kor ea; the FTA in fact reaffirms these commitments in 
its TBT Chapter (Art. 4.1).  The Annex 2-B provid es for bilateral commitments which strengthen and 
complement the multilateral obligations enshri ned in WTO Agreements, notably the TBTA.  
 
Questions from the Delegation of Canada 
 
6. Paragraph 30, page 11 (& Annex 2): 
(a) For those EU tariff lines subject to the en try price scheme and where the specific portion 
of the duty is to be eliminated (for example – 0808.10.80 – fresh apples), can the Parties provide further clarification as to how the transition process/phase-out for the elimination of that non-ad valorem portion for those tariff lines by the end-date denoted 
in the EU Tariff Schedule would operate?   
 
 For the 28 tariff lines concerned by EU entry price scheme the ad valorem part of the tariff 
lines will be phased out according to the staging indicated in Annex 2-A of the Agreement.   WT/REG296/2 
 Page 3 
 
 
   The specific part of the duty for 12 tariff lines has been entirely eliminated at the entry into 
force of the Agreement. 
 The specific part of the duty for 13 tariff lines w ill be eliminated in its entirety on the first day 
of year 2, 5, 7, 10, 15, 17 or 20. For example, the specific duty for tariff line 0808.10.80 – fresh apples – will be eliminated on the first day of year 10, except for Fuji-variety apples, for which year 20 is 
foreseen. 
 The specific part of the duty will be maintained for 3 tariff lines. 
(b) For those products subject to the entry pri ce scheme, can the Parties clarify how traders 
may be able to determine the base rate (in terms of both the ad valorem and specific 
portions of the entry price scheme) when the base rate is not specifically denoted in the 
EU Tariff Schedule nor in Appendix 2-A-2. 
 
 For products subject to entry price scheme, th e base rates for the ad valorem and the specific 
part of the duty are listed in Annex II of the Common Customs Nomenclature (Commission Regulation (EC) No 1031/2008 and subsequent Acts). 
 
7. Paragraph 41, page 15:  This paragraph suggests that any good that meets the 
requirements of the special rules of origin sy stem would qualify as "originating" under the 
FTA.  Therefore, would these products have the same status as those that meet the originating requirements under the Protocol concerning the definition of ‘originating products’ and 
methods of administrative cooperation?  In other words, would products that qualify under the 
special rules of origin under Annex II(a) be subj ect to all the commitments that are applicable 
to "regular" originating goods as per the above noted protocol, such as bilateral safeguards 
(Article 3.1)? 
 Yes.  Annex II(a) of the EU-Korea FTA provides only for alternative product specific rules . 
Beyond that, Annex II and II(a) are part of the same Protocol of origin and are subject to the same 
general requirements (rules of origin and origin  procedures).  The only difference concerning the 
general requirement stand in the additional requirements, listed in the beginning of Annex II(a), 
which apply only when this Annex is used (additio nal reference on the proof of origin, additional 
documentary evidence …).   To illustrate these facts, Article 5 on "Suffi ciently worked or processed products" establishes 
that "products which are not wholly obtained are considered to be suffici ently worked or processed 
when the conditions set out in the list in Annex II or Annex II(a)  are fulfilled." 
 
8. Paragraph 71, page 20:  Sector Specific Provisions on Trade in Goods, Motor Vehicles 
and Parts (Annex  2C)   
 Background:  The Korea-US Free Trade Agr eement (KORUS), which came into force 
on March 15, 2012, provides qualifying US auto makers with favourable treatment (if they are 
within 19 per cent of either the Korean fuel eco nomy or greenhouse gas emission standards.)  
Favourable treatment on emission regulations under the KORUS provision applies from 2012 to 2015.  To qualify for this provision, vehicle ma nufacturers had to have sales volumes in 2009 
below 4500 vehicles.  According to publica lly available information certain European 
manufacturers qualify under the criteria while oth ers do not qualify because they sold more 
than 4500 vehicles in 2009.    
 WT/REG296/2 
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   What criteria will be used to establish MF N treatment on emission regulations for 
European vehicle manufacturers? Will Korea appl y the same 2009 sales volumes criteria used 
in KORUS to EU vehicle manufacturers? Will the EU be seeking to ensure that all of their vehicle manufacturers qualify for favourable treatm ent on emission regulations? If yes, how will 
the criteria or provision be modified to accommodate manufacturers that currently do not 
qualify?  
 The leniency on fuel economy and greenhouse gas emissions is provided through Korea’s domestic regulation, not by the KORUS FTA.  Irrespective of its originating country, the 
manufacturer meeting certain conditions in the regulati on will be eligible for the lenient target level. 
 In June 9, 2011, the Korean Government en acted "Regulation on Automobile Fuel Economy 
and Greenhouse Gas Emissions" (the Minister of Environment Notice No. 2011-89) that includes the following element, reflecting comments from various st akeholders in the U.S., the EU and many other 
economies. 
- With regards to the average fuel economy or the average CO2 emission, from 2012 to 2015, a 
manufacturer that sold up to 4,500 motor vehi cles in Korea in calendar year 2009 will be 
allowed to achieve a level that is 19% more lenient than the level which otherwise would 
have been applicable to that manufacturer.  
 The EU does not intend to ask any derogation for carmakers having sold more than 4500 cars 
in 2009. 
9. Paragraph 141, page 36:  Question to the Europe an Union:  In light of the proposal for a 
Directive of the European Parliament and of th e Council on the Award of Concession Contracts 
tabled in December 2011, what is the expected impact of the proposed directive on the Free Trade Agreement between the European Union and the Republic of Korea as well as on other 
international agreements like the amended WT O Agreement on Government Procurement? 
 The expected impact is that the new legisla tion will not affect the Agreement.  While the 
Commission has taken into account its international obligations when drafting the legislative proposal, 
however, in the EU system the outcome of a legislat ive procedure is not always easy to predict, as the 
EP and Council might introduce modifications in to the proposal during the on-going legislative 
procedure in view of the final adoption of this pr oposal. In any case, once adopted the EU will inform 
its bilateral FTA and GPA partners , as appropriate, of the scope and content of the final adopted 
legislation.  
 
10. [Paragraph 141, page 36] Question to the Republic of Korea:  In light of Chapter 9 
(Government Procurement), Article 2 (Rules Ap plicable to BOT Contracts and Public Works 
Concessions), subparagraph 5 (Review) of th e Free Trade Agreement between the European 
Union and the Republic of Korea and in light of Article XVIII (Information and Review as 
Regards Obligations of Entities) of the WTO Ag reement on Government Procurement, how is 
the Republic of Korea‘s review system organized ? Are the reviews processed by a quasi-judicial 
body, an administrative tribunal or by the regular courts?   
 With respect to BOT contracts and public works concessions, the decisions by competent 
authorities covered by Annex 9 of the Korea-EU FTA  can be brought before the Administrative Court 
whose rulings are subject to the review of the Hi gh Court and Supreme Court as is the case with the 
procurement covered by Chapter 9 of the Korea-EU FTA. 
 
11. [Paragraph 141, page 36]  Question to the Republic of Korea:  In light of Chapter 9 
(Government Procurement), Article 4 (Means of Publication), subparagraph 1 (for Korea) of 
the Free Trade Agreement between the European  Union and the Republic of Korea, does the 
Republic of Korea have plans to develop a single point of access, or single Internet website, for  WT/REG296/2 
 Page 5 
 
 
  its entities to publish their tender notices electronica lly in one centralized location?  If yes, what 
would be the timeline to implement such a single point of access?  If there are no formal plans, 
is such a single point of access being considered? 
 Article 4 of Annex 9 of the Korea-EU FTA sets out the Internet homepage of each covered 
entity as means of publication.  For more inform ation, Kwanbo (the Korean Government's Official 
Gazette) is also a tool to obtain relevant information. 
 
Questions from the Delegation of Chinese Taipei 
Scope and Definition 
(Page 22, paragraph 77) 
 
12. As indicated, section C of Chapter 7 of th e Agreement provides for the establishment of 
a commercial presence, which means the formation,  acquisition or maintenance of a juridical 
person within the territory of the EU or Korea for the purpose of performing economic activities. A juridical person of a Party is requi red to be established in accordance with the laws 
of one of the EU Member States or Korea.  Howeve r, footnote 39 adds a supplement to the effect 
that specific exceptions are applicable to some shipping companies established outside the EU or 
Korea. 
 Why do the Parties provide specific excep tions to these shipping companies in 
Article 7.2 (g) and footnote 7 of the Agreement? 
 
 The provision contained in Article 7.2.(g) of  the Agreement takes account of the specific 
reality of international shipping, whereby shippi ng companies registered in a given country and 
controlled by nationals of that country are ind eed considered as being a service provider of that 
country, even if from a purely juridical point of vi ew the company may have been established outside 
the country in question.  This setting is mainly a remnant from past shipping practices, but it is still a 
reality for a number of EU shipping companies and needs therefore to be properly addressed in the 
Agreement. 
Denial of Benefits 
(Page 24, paragraph 80) 
 
13. A Party may deny the benefits of Chapter 7 of the Agreement to a juridical person if it 
does not "engage in substantial business operation" as in Article V. 6 of the GATS.  Footnote 45 
of the Secretariat’s Presentation points to f ootnote 6 in Chapter 7 of the Agreement, which 
states that "the EU Party understands the concept of "effective and continuous link" with the economy of a Member State of the EU enshrined in Article 48 [of the TEC] as equivalent to the concept of "substantial business operations". 
 Could the EU please elaborate further on the main requirements to determine an 
"effective and continuous link"? 
 
 Does Korea equally adopt the same requirements as the EU for determining whether a 
juridical person has substantial business operations? 
  As pointed out in footnote 6 in Chapter 7 of the Agreement the EU understands the concept of 
"effective and continuous link" with the economy of a Member State of the European Union enshrined in Article 54 of the Treaty on the Functio ning of the European Union as equivalent to the 
concept of "substantive business operations" provided for in paragraph 6 of Article V of the GATS.  
The purpose of this concept is to prevent abuse of  the rights granted under the Agreement through the 
creation of a so-called "letter-box" operation in one of  the Parties to the Agreement. In the context of WT/REG296/2 
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  the EU-Korea FTA,  Korea adopts the concept of "substantial business operations" as provided for in 
paragraph 6 of Article V of the GATS. 
Movement of natural persons 
(Page 26, paragraph 91)  
14. It is stated that the Parties shall also ad opt a decision on commitments concerning the 
access of contractual service suppliers and independe nt professionals of a Party to the territory 
of the other Party.  This should take place no  later than two years after the conclusion of 
negotiations on Article XIX of the GATS and the Doha Declaration. 
 What is the reason for the Parties not being able to reach a decision on commitments 
concerning contractual service supplie rs and independent professionals? 
  Until a decision is reached on the above, what  period of temporary entry and stay in the 
territory of either Party applies for these persons?  
 The parties did not consider it a priority to provide in an immediate manner for the entry and 
temporary stay of categories of personnel that do not have a direct link with the establishment commitments. In particular, the EU's first interest in the Mode 4 negotiations was to address the need 
of EU investors to post employees to their establishments in Korea. 
 In the absence of bilateral EU commitments,  the EU GATS commitments are applicable for 
Contractual Service Suppliers. In particular, commitm ents have been made for stays of up to three 
months only and for certain sectors only (individua l EU Member States have committed different 
sectors).  The existing EU instrument addressing conditions for the admission of third country nationals for employment is the 1994 Council Resolu tion on limitations on admission of third-country 
nationals to the territory of the Member States for employment (OJ C 274, 19.9.1996, p.3), which sets 
a (non-binding) maximum of 4 years. 
 Regarding Independent Professionals, the EU  does not have any GATS commitments.  The 
relevant EU instrument to consider is the 1994 C ouncil Resolution relating to the limitations on the 
admission of third-country nationals to the territory  of the Member States for the purpose of pursuing 
activities as self-employed persons (OJ C 274, 19.9.19 96, p.7), which does not set a specific time 
limit. 
 For Korea, the period of temporary entry and stay shall be applied in accordance with the 
relevant stipulation in the Immigration Control Act. 
 
Liberalization commitments 
(Pages 27-28, paragraphs 99 and 102)  
15. As indicated, Annex 7-A of the Agreement, Lists of Commitments of the Parties, 
provides that the rights and obligations aris ing from the lists of the EU's and Korea's 
commitments have no self-executing effects and thus confer no rights directly to natural or 
juridical persons. 
 What is the purpose of the Parties including the provision in the Agreement that 
commitments have no self-executing effects? 
 
 If Annex 7-A of the Agreement did not include this provision, what effect could this 
possibly have on the Parties' commitments in trade in services? 
 
 The quoted text clarifies that the EU-Korea FTA  is an international agreement and as such 
any commitments cannot be invoked or enforced directly by natural or juridical persons.   WT/REG296/2 
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  Sector Specific Commitments 
(Pages 29-31, paragraph 105)  16. Tables IV.2 and IV.3 show that, in contrast to their commitments in its GATS schedule, 
the EU has no commitment in air transportation  services in the Agreement and Korea has no 
commitment in audiovisual services. 
 Contrary to what is mentioned in the Secretar iat report, the EU has indeed commitments in air 
transportation services, as follows:  
1. Commitments listed under point 12.E of Annex 7-A-1 and point 17.E of Annex 7-A-2 
("services auxiliary to air transport services") of the Agreement as: 
- sales and marketing 
- computer reservation systems 
- ground-handling 
- storage and warehouse services 
- freight transport agency services 
- rental of aircraft with crew. 
2. Commitments listed under point 1.E ("renta l/leasing services without operators2) and 1.F 
("other business services") of Annex 7-A-1 and 6. E ("rental/leasing services without operators") and 
6.F ("other business services") of Annex 7-A-2 of the Agreement as: 
- maintenance and repair of aircraft and parts thereof 
- leasing/rental of aircraft without operators. 
 It should be noted that no commitments in gr ound-handling and rental of aircraft with crew 
were made in the GATS.  Therefore, the commit ments made in the Agreement constitute a clear 
improvement in comparison with the GATS schedules.  
 As audiovisual services are carved out of the sc ope of the Chapter (Articles 7.4, 7.10), Korea 
has made no commitments. Audiovisu al services are discussed in the Protocol on Cultural 
Cooperation of the Agreement. 
 
17. Article 7.4 of this Agreement excludes measures affecting the cross-border supply of all 
service sectors with the exception of some secto rs that were committed in the GATS schedules of 
both or either Parties, such as audio-visual serv ices, national maritime cabotage;  and domestic 
and international air transport services. 
 Does this Agreement represent a rollback of th e GATS commitments made by each of 
the parties, and if so, does it comply wi th the requirements of GATS Article V? 
 
 The Agreement indeed excludes audiovisual ser vices, national maritime cabotage and a part 
of domestic/international air transport services.  Howe ver, it should be noted that none of the excluded 
sectors were committed in the GATS schedules either.  Therefore, this can certainly not be seen as a 
rollback of the GATS. On the contrary, on several  aspects the Agreement constitutes a substantial 
improvement in comparison to the GATS (see e.g. reply to question 10).  
Intellectual Property Rights 
 18. According to Articles 10.18 and 10.19 of this FTA, both parties agree to protect each 
other's listed GIs.  WT/REG296/2 
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   Are the listed GIs required to apply for protection in accordance with the laws of the 
other Party, and to follow related procedures? 
 
 The GIs listed in the Annexes to the FTA are protected in accordance with the provisions of 
Article 10.18 and subsequent Articles.  The elements  for registration and control of GIs mentioned in 
paragraph 6 of Article 10.18 of the FTA include inter alia , an objection procedure that allows the 
legitimate users of names (…) to be taken into  account; an administrative process verifying that 
geographical indications identify a good as originating in  a territory, region or locality of  either Party 
where a given quality, reputation or other characteri stics of the good is essentially attributable to its 
geographical origin etc., which are elements for regi stration and control that are met by the legislation 
of the Parties, as referred to in Article 10.18.  
Banking and Other Financial Services 
 19. According to Annex 7 of the FTA Ag reement, the Korean authorities allow 
non-financial institutions to provide elect ronic banking services via subsidiaries.  
 What is the scope of these services? 
  Also, according to Annex 7, the Korean auth orities allow an internationally recognized 
financial institution to own more than 10 per cent of the shares of a Korean commercial bank or 
bank holding company.  
 
 How is the term "internationally recogni zed financial institution" defined? 
  Again, according to Annex 7, the Korean authorities will begin allowing the provision and transfer of financial data processing a nd related software relating to banking and other 
financial services within no less than two ye ars. However, for the purpose of prudential 
supervision, the authorities may require offsho re parties to retain certain functions within 
Korea.    What are the "certain functions" referred to here? 
 
 1) What is the scope of these services? 
 "Certain electronic financial services" stipulat ed in the Korea-EU FTA refers to financial 
products and services such as electronic funds tr ansfer services, issuance and management of 
electronic debit payment means, issuance and management of electronic prepayment means and electronic payment settlement agency services. 
 2) How is the term "internationally r ecognized financial institution" defined? 
 "An internationally recognized financial institution" includes, as mentioned in the Schedule of 
Specific Commitments in Services Sectors of the Korea-EU FTA, any financial institution that has 
been rated by an international rating organizati on at a level acceptable to the relevant Korean 
regulator or a financial institution that has dem onstrated by alternative means acceptable to the 
relevant Korean regulator that it has an equivalent  status. It can also mean an institution that has 
abided by international regulations such as th e capital regulation of the Bank for International 
Settlements, and has received for more than three y ears a credit level above investment grade by an 
international credit rating agency, and is able to co operate with the finance authorities of its country 
and Korea by information exchange, and is intern ationally recognized of its soundness in financial 
affairs and business by receiving relevant supervis ion of its country's supervision authorities. 
 
  WT/REG296/2 
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   3) What are the "certain functions" referred to here? 
 Korea is preparing for a specific guideline for the implementation of the said items of 
understanding within no less than two years of the date  of entry into force of the Korea-EU FTA.  In 
particular, Korea will lay out a specific plan on th e protection of sensitive information of consumers, 
the prohibition of unauthorized reuse of such info rmation, the jurisdiction of financial regulation 
authorities to access the records of financial services suppliers of such treatme nt of information, and 
the conditions on the location of technology equipm ent. As soon as the plan is prepared, specific 
conditions will be decided regarding the informati on to be transferred and the functions to be 
maintained within Korea. 
Questions from the Delegation of Mexico 
Intellectual Property 
Paragraph 145  20. In the matter of prevention or control of licensing practices, will it be considered an 
abuse of intellectual property rights by the owner of the mark that granted the licence thereto 
where the latter fails to take the relevant legal ac tions for protection of his/her mark, leaving it 
to the licensee to take protective action at his/her own expense, so that the owner of the mark can avoid the expenses arising fr om abusive practices or other conditions in the framework of 
this provision?  Is there any restriction or obligation to the effect that the owner himself is the only person authorized to take such actions? 
21. It is mentioned that the parties undertake to  exchange views and information on their 
practices and policies affecting the transfer of te chnology and to prevent licensing practices or 
other conditions which may affect technology tr ansfer or constitute abuses of intellectual 
property rights by right holders.  What is me ant by the reference to abuses of intellectual 
property rights by right holders? 
Answer to questions 20 and 21:  
 
 The specific situation described by Mexico in  the first question is not specifically addressed 
by the provisions of the FTA.  Mexico is invited to  refer to the Parties legi slative framework in that 
regard.  As to the second question, abuses may for instance occur in relation to competition law.   
 
Paragraphs 146 and 147 
 
22. It is no less true that many of the holders of intellectual property rights who are 
adversely affected wish to obtain prompt compen sation for any damage or injury so incurred. 
 In this connection: 
 
(a) How does Korean legislation seek to protect the affected interests and what is the 
average time frame envisaged for resolving such claims? 
 What would be the criteria for protect ion of works under Korean legislation? 
 
(a) When intellectual property rights are or are lik ely to be infringed, Korean laws allow the right 
holders to request a court order with respect to i) suspension of the infringing activity, 
ii) preventive measures, and iii) compensation fo r the damages.   They may also claim for 
pre-established damages in the case of trademark counterfeiting or copyright infringement. 
  WT/REG296/2 
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   It is recommended that the first instance for civil suits should be completed within 
five months since the day the lawsuit was filed a nd that the process of the appellate trial should be 
finalized within five months since the day the r ecord of proceedings was received.  However, the 
actual time taken for the abovementioned pro cesses could be longer than the recommended time 
frame, given the characteristics of the lawsuit. 
 
(b) Article 2 (Definitions) of the Copyright Act de fines the term 'works' as creative productions in 
 which human ideas or emotions are expressed.  A copyright shall take effect on the date a 
 work is created regardless of the fulf ilment of any procedure or formalities. 
 23. Under your respective legislation, would all works, including computer programs, be 
subject to "exhaustion of copyright", and under what conditions? 
(a) Is provision made in Korea for the cumula tive protection of industrial designs? 
(b) With regard to "anonymous works", from what point in time and for how long 
will copyright be applicable? 
(c) Under Korean legislation, will there be a time-limit for the transmission of 
economic rights? 
(d) Does Korea intend to legislate on the authorization of "private copying" and in 
what manner? 
(e) What kinds of measures have been established by the contracting parties to 
ensure adequate protection against persons  that remove or alter technological 
measures? 
 In Korea, the Copyright Act recognizes 'Exhaustion of Right'.  Article 20 (Right of 
Distribution) of the Copyright Act stipulates that the author shall have a right to distribute the original or copies of his/her work, unless the original or co pies of a work is offered for transaction by means 
of selling, etc. with the authorization of the owne r of the property rights.  Notwithstanding the proviso 
of Article 20, the author shall have the right to  rent a commercial phonogram or commercial program 
for profit-making purposes according to Article 21 (Right of Rental).   Within the EU, two distinct "exhaustion" re gimes subsist, as established by Directive 
2001/29/EC of 22 May 2011 (on the harmonization of cer tain aspects of copyright and related rights 
in the information society, OJ L167, 22.6.2001, p. 10.).  The first relates to the right to control the 
distribution of works incorporated in a tangible artic le, as detailed in Recital 28 and Article 4 of that 
Directive.  In respect of these work s, the first sale in the EU of the or iginal of a work or copies thereof 
by the rightholder or with his consent exhausts the right to control resale of that object in the 
Community. The exception to this is the rental right:  a right holder may object to the rental of any copy that has been distributed. 
 
 The distribution right is not exhausted in respect  of the original or of copies thereof sold by 
the rightholder or with his consent outside the EU.    As detailed by Recital 29 and Article 3 of the same Directive, the question of exhaustion does 
not arise in the case of services and on-line services in  particular. In other words, the principle of 
exhaustion does not apply to either the authors' ri ght of communication to the public or the right of 
making available to the public.   With regard to the right to distribute computer programs, Article 4 of Directive 2009/24/EC (the Computer Programs Directive) establishes the right  to do or authorise any form of distribution to 
the public, including the rental, of the original computer  program or of copies ther eof. It also confirms 
that the first sale in the EU of a copy of a progr am by the right holder (or with his consent) shall  WT/REG296/2 
 Page 11 
 
 
  exhaust the distribution right within the EU of that copy. It equally specifies the exception with regard 
to the further rental of the program or a copy thereof.    Case C-128/11, currently before the Court of Ju stice of the European Union, raises the issue 
of the exhaustion of the distribution right in softwa re, where the software is distributed in electronic 
form.  
  (a) The Copyright Act does not have specific provisions providing for the cumulative protection of industrial designs. However, the defi nition of ‘works of applied art’ in Article 2 
(Definitions) of the Copyright Act explicitly includes ‘designs’ in its scope. Therefore, a design could 
enjoy the cumulative protection as long as it satisfies certain conditions of both the Copyright Act and 
the Industrial Design Protection Act.   (b) Anonymous works are not covered by the FTA.  This means that each Party's legislation is applicable.  In the case of the EU, this means that the term of protection for anonymous or 
pseudonymous works runs from seventy years after the work is lawfully made available to the public.  
In Korea, according to Article 40 (Period of Pr otection for Anonymous and Pseudonymous Works) of 
the Copyright Act, an author's property rights in an anonymous or pseudonymous work, unless the 
pseudonym is widely known, shall continue to subs ist for a period of 70 years after it has been made 
public; provided that if reasonable grounds are found to show that seventy years have lapsed after the 
death of the author within such a period, such pr operty rights shall be deemed to have expired when 
seventy years have passed afte r the death of the author. 
  (c) The Copyright Act does not contain a provision on time-limit for the transmission of the Author's property rights.   
 (d) Article 30 (Reproduction for Private Use) of the Copyright Act stipulates that it shall be 
permissible for a user to reproduce by oneself, w ithout any profit making purposes, a work already 
made public for the purpose of the personal, family , or other similar uses within a limited circle; 
provided that this shall not apply to reproduc tion by a photocopier set up for public use. 
  (e) In Korea, Article 104-8 (Request of inj unctions, etc.) and Article 136 (Penalty) of the 
Copyright Act provide for civil and criminal re medies against the circumvention of effective 
technological measures. Within the EU, it is up to Me mber States to determine the relevant type of 
protection. A broad spectrum of legislative solutions  has been implemented, varying from civil law to 
criminal law.  
 24. Regarding the provisions of the Agreement, and the reference to the fact that the 
parties, in relation to "the owners of copyrigh t and/or related rights", shall establish legal 
protection against any persons that  remove or alter electronic rights management information, 
and against the circumvention of effective techno logical measures, the following questions arise: 
(a) Is it not the State that is responsible for ensuring protection, leaving the 
establishment of such protection to the initiative of right holders? 
(b) Who are the persons referred to? 
(c) To what extent is such protection entrusted to private individuals?  
 
 The question is not clear.  Article 10.12 of the FTA states that "Each Party shall provide 
adequate legal protection against the circumventi on of any effective technological measures, which 
the person concerned carries out in the knowledge, or  with reasonable grounds to know, that such 
person is pursuing that objective."  This should not be  construed to mean anything other than that each WT/REG296/2 
Page 12  
 
  Party is responsible for establishi ng the legal framework for the protection in question.  It does not 
imply that the parties themselves are responsible for the establishment of the protective measures. 
 
Paragraph 147 
 
25. The report prepared by the WTO Secretariat contains no reference to provisions on the 
terms of protection of the rights of performers or producers of phonograms, and it is therefore considered appropriate to ask the parties wheth er the term of protection of the rights of 
performers and producers of phonograms is governed by the provisions of Article 17 of the WIPO Performances and Phonograms Treaty. 
 Article 10.5 of the FTA states that "the Parties shall comply with: … (d) Articles 1 to 23 of 
the WIPO Performances and Phonograms Treaty".    
Paragraph 148 
 
26. With regard to the system of opposition to trademark applications, what it the 
procedure to be followed? 
27. On the basis of the system of registration of  trademarks that it is planned to establish, 
what is the legal interest for a third party to oppo se a trademark application?  Will it be the fact 
of having submitted a trademark application or is the party required already to have ownership 
of a trademark? 
Response to both questions:  
  
 Under Article 10.15 of the FTA, the Parties have committed to provide for a system for registration of trademarks, with the possibility for in terested parties to oppose trademark applications.  
 
 In Korea, according to Article 25 of the Trademark Act, any person can file a written 
opposition to a trademark registration with the Co mmissioner of the Korean Intellectual Property 
Office within two months after the publication of the application.  The written opposition should 
specify the reason for opposition and the supporting evidence.  For more information on the application and registration procedures for trad emarks, please refer to the KIPO website at:  
 
http://www.kipo.go.kr/kpo/user.tdf?a=user.e nglish.html.HtmlApp&c= 30103&catmenu= ek04_02_01 
 
 In the EU, the trademark system has been harmonized under Directive 2008/95/EC.  
Furthermore, the conditions for registration of the Community trade mark and the relevant applicable 
procedures, including observations by third par ties and opposition, are established in Regulation 
207/2009.  Legal texts and additiona l information with details of the procedure for registration are 
available on the website of the Office for the Harmonisation in the Internal Market: 
 http://oami.europa.eu/ows/rw/pages/CTM /legalReferences/legalReferences.en.do 
 
Paragraph 153 
 
28. On the question of patents, what is the proc edure to be followed for obtaining extension 
of the applicability of the patent, to compensate  for the reduction in the effective life of the 
patent;  that is to say, is the procedure conduc ted ex officio or at the request of the patent 
owner, and what requirements must be  met to obtain such extension?  WT/REG296/2 
 Page 13 
 
 
  29. Where a patent extension is granted, will it  apply throughout the territory of the 
European Union or must such extension be request ed in each of the countries?  In what cases 
would it apply? 
Answer to both:  
 Korea-EU FTA Article 10.35 and Korea's Patent Act article 89 provide extension in case of 
delay occurred in the course of authorization or re gistration of pharmaceutical products and plant 
protection products.  The procedure is  conducted at the request of the patent owner.  The requirements 
are: 
 Authorization or registration under other laws or  regulations is require d to work a patented 
invention; 
 An extended period has been taken to complete  activity, safety or other tests necessary to 
obtain the authorization or registration; 
 The period of which delay patent appli cant is responsible for is excluded; and 
 Extension period may be given up to five years  
 In the EU, the extension of the duration of th e rights conferred by the patent protection is 
regulated by Regulation 1610/96 and Regulati on 469/2009, concerning the creation of a 
supplementary protection certificate for, respect ively, plant protection products and medicinal 
products.   
 As explained in the relevant Regulations, as a general rule, the application for a certificate 
shall be lodged with the competent industrial prope rty office of the Member State which granted the 
basic patent.  The relevant rules related to the procedure and the necessary requirements are detailed 
in the above mentioned Regulations, available on the internet ( http://eur-lex.europa.eu/en/index.htm ). 
Paragraph 154 
 30. What complementary measures or procedures  would be available so as to permit 
effective action against any act of infringement of intellectual property rights covered by the 
Agreement? 
 Article 10.41 of the FTA sets the general ob ligations of the Parties under the Section C 
"enforcement of intellectual property rights", as fo llows: "The Parties reaffirm their commitments 
under the TRIPS Agreement, and in particular  Part III thereof and shall ensure that the following 
complementary measures, procedures and remedies  are available under their legislation…".  
Please refer in that regard to Articles 10.42 to Articles10.61.   
 
Paragraph 155 
 31. Has any type of code or procedure been deve loped to date by the parties to regulate the 
actions of customs, administrative, civil a nd criminal authorities at the borders, for the 
detection or detention of suspect goods that  are sought to be introduced into the 
European Union from Korea or vice versa? 
(a) What would be the measures or procedures applicable to online service 
providers in connection with infringements of intellectual property rights covered by the Agreement? 
(b) With regard to border measures, what is the framework for their 
implementation? WT/REG296/2 
Page 14  
 
   Since 1997, the EU and Korea have worked under the customs cooperation agreement signed 
on 10 April 1997.  In the EU, Regulation 1383/2 003 is the legal framework for border measures.  
 
32. From the report prepared by the WTO Secr etariat for the consideration of the Free 
Trade Agreement between the European Union and th e Republic of Korea, it appears that both 
parties have agreed to comply with the substant ive provisions of the Rome Convention, the Bern 
Convention, the WIPO Copyright Treaty and the WIPO Performances and Phonograms 
Treaty. 
 Moreover, the term of protection of copyright has been fixed at not less than the life of 
the author and 70 years after the author's death, and the term of protection of the rights of 
broadcasting organizations has been fixed at not less than 50 years after the first transmission of 
a broadcast. 
 
 However, no reference is found to the term of  protection of the rights of performers or 
phonogram producers. 
 
 In the light of the foregoing, it is consid ered appropriate to ask the parties whether the 
term of protection of the rights of perform ers and phonogram producers is governed by the 
provisions of Article 17 of the WIPO P erformances and Phonograms Treaty, i.e.: 
 
(a) The term of protection granted to performers shall last at least until the end of a 
period of 50 years computed from the end of the year in which the performance 
was fixed in a phonogram;  and 
(b) the term of protection granted to producers of phonograms shall last at least 
until the end of a period of 50 years computed from the end of the year in which the phonogram was published, or failing such publication, within 50 years from 
fixation of the phonogram, 50 years from the end of the year in which the 
fixation was made. 
 Article 10.5 of the FTA states that "the Parties shall comply with: … (d) Articles 1 to 23 of 
the WIPO Performances and Phonograms Treaty".    
Questions from the Delegation of Japan 
 
Provisions on Trade in Goods Sector-Specific provisions on trade in goods Paragraph 69, Page 19  
 
33. What is the reason for highlighting the role  of the ISO, IEC and ITU as the relevant 
international standard-setting bodies for el ectromagnetic compatibility (EMC) and safety? 
Japan would like to know how the internationa l standard set by the other international 
organizations will be treated under the Agreement. 
 With regard to the first part of the question,  the EU and Korea share the view that ISO, IEC 
and ITU are the main international standard-setting bodies for electric safety and EMC.  As to the 
second part of the question, the EU and Korea consider that no other bodies could, at this point in 
time, be considered as 'relevant international sta ndard-setting bodies' for the purpose of implementing 
Annex 2B.  However, should the EU and Korea in the future agree that other bodies should also be 
considered as falling within the scope of Article 2.1,  they may include such bodies by decision of the 
Trade Committee, pursuant to footnote 1 in of Annex 2B.  
  WT/REG296/2 
 Page 15 
 
 
  Paragraph 69, Page 19 - (to the EU) 
 
34. According to the provisions in Appendix 2-B-1,  the coverage of products with regard to 
the obligation of the European Union will be those that "fall within the scope of ... the provisions on safety or electromagnetic compatibility of Directive 1999/5/EC of the European Parliament 
and of the Council of 9 March 1999 on radio equipment and telecommunications terminal 
equipment and the mutual recognition of their confor mity".  In this context, what exactly would 
the scope of safety or electromagnetic compatib ility be?  Please indicate all requirements other 
than those set out in Directive 1999/5/EC exhaus tively.  (For example, are standards to avoid 
interference included in EMC or safety?) 
 The EU is unsure what Japan means by "all re quirements other than those set in Directive 
1999/5/EC)".     In the EU, the regulatory requirements relevant to EMC and electrical safety are provided for in three Directives. Directive 200 6/95/EC (the "Low Voltage Direc tive") deals with electrical safety 
and applies to any electrical equipment with a voltage between 50V a nd 1000V for alternating 
current, and 75V and 1500V for direct current; Directive 2004/108/EC (the "EMC Directive") deals with electromagnetic compatibility and it applies to  any apparatus liable of producing electromagnetic 
disturbance or suffering from it.  In particular, 'electromagnetic compatibility' is defined in the EMC 
Directive as "the ability of equipment to function satisfactorily in its electromagnetic environment 
without introducing intolerable electromagnetic distur bances to other equipment in that environment".  
 
 Directive 1999/5/EC (the "RTTE Directive") applies to radio and telecomm terminal equipment and it requires products fa lling under its scope to comply w ith both the safety requirements 
of the Low Voltage Directive (but without voltage limits applying) and the EMC requirements of the 
EMC Directive. In addition, the RTTE Directiv e includes requirements on radio frequency spectrum 
efficiency, avoidance of harmful interference and compatibility with the network. These three 
requirements are not, however, within the scope of the EU-Korea FTA Annex 2B.    The FTA applies to electrical safety and el ectromagnetic compatibility aspects of products 
under the scope of those three Directives.   Paragraph 69, Page19 - (to Korea) 
 
35. Appendix 2-B-3 is the list of items on whic h Korea reserves the possibility to request a 
third party certification. As the list does not include telecommunications terminal equipment, can we understand that the Korean side will intro duce a supplier's declaration of conformity for 
all telecommunications terminal equipment? If so , please indicate the current situation of its 
introduction and the future prospects. 
 Appendix 2-B-3 is the list on which Korea can request a third party certification in 
accordance with article 4.2(b) of the Annex 2-B.  According to Appendix 2-B-2, article 4.2(b) only 
regulates the products falling within the scope of the Electronic Appliances Safety Control Act.  
Currently, telecommunications terminal equipment does not fall within the scope of the above 
mentioned act, but within the scope of the Radio Waves Act .  Therefore, the product is subject to 
article 4.2(a) and can enter the Korean market by obtaining a certificate issued by a European 
conformity assessment body.  However, after a transi tional period, which is three years after the date 
of entry into force of the Agreement, it can be a ccepted by a supplier’s declaration of conformity 
based on a test report. 
 
  WT/REG296/2 
Page 16  
 
  Provisions on Trade in Services 
Scope and Definitions Paragraph 77 (b), Page 22  36. National maritime cabotage is not govern ed by the Agreement. What does "national" 
mean in this context? Is there any difference from "maritime cabotage"?  
 The terminology "National maritime cabotage" is used in the Agreement to take account of 
the fact that the EU is made of 27 Member States.  A sole reference to "maritime cabotage" could in 
fact be interpreted as excluding cabotage within the EU (i.e. whenever the transport takes place between two points located in two Member States) a ltogether.  The reference to "national maritime 
cabotage" makes it clear that the exclusion from the scope of the Agreement is limited to the cases 
where the maritime transport takes place between two points within the same Member State.  
Maritime transport between two points located w ithin the EU but in different Member States is 
therefore covered by the Agreement.    Paragraph 77 (e), Page 23  37. Concerning Sub-sector D of Section E of Chapter 7 of the Agreement, is there any 
specific reason why the principles of regulatory framework of Telecommunications Services do not cover any of the elements stipulated in "Annex on Telecommunications of GATS? Japan 
would appreciates if both sides could provi de an explanation with regard to that. 
 The provisions set out in sub-section D of Chapter 7 cover a wide range of regulatory 
elements concerning inter alia the regulatory authorit y, authorizations to provide telecommunications 
services, competitive safeguards on major suppliers, interconnection, number portability, allocation 
and use of scarce resources and universal service.  These aspects reflect the elements the Parties agreed upon in the field of telecommunication services.  MFN treatment  Paragraph 86, Page 25 
 
38. According to the Factual Presentation, a "s ignificantly higher level of obligations" 
means obligations that create an internal market such as the EEA. Japan would like to know 
other concrete examples of "significantly higher level of obligations".  
 According to Paragraph 1 of A nnex 7-B "for the purposes of Ar ticles 7.8.2 and 7.14.2, to be 
of a significantly higher level, obligations stipul ated in a regional economic integration agreement 
shall either create an internal market on services  and establishment or encompass both the right of 
establishment and the approximation of legislation".  Footnote 1 to Annex 7-B explains that "the 
European Economic Area (EEA) is the only internal  market with third countries of the European 
Union at the time of the signature of this Agreemen t." Paragraph 1 (a) and (b) define the terms "right 
of establishment" and "approximation of legislatio n".  Examples which fulfil these criteria are the 
EU's Stabilization and Association Agreements with  Albania, Croatia, the Former Yugoslav Republic 
of Macedonia and Montenegro.  Movement of natural persons Para 90, Page 26 
 
39. If there is any national or internal polic y which stipulates criteria regarding movement 
of natural persons in the framework of FTAs, Japan would be interested to be provided it.  WT/REG296/2 
 Page 17 
 
 
   The EU is currently developing legislation in the form of a Directive on conditions of entry 
and residence of third-country nationa ls in the framework of intra-cor porate transfer.  The proposal is 
without prejudice to more favourable provisions of Un ion law, and in particul ar of trade commitments 
containing more favourable provisions. The draft Di rective is however aimed to complement and 
facilitate the application of such trade po licy commitments (GATS and related Free Trade 
Agreements), which do not cover cond itions of entry, stay and work. 
  There is no such initiative in Korea th at could be provided at this time. 
 
Paragraph 90, Page 26 - (to Korea) 
 
40. Regarding graduate trainees, please provi de relevant Korean domestic laws and 
regulations in English, if any, concerning their entry and stay which guarantees the implementation of the Agreement. 
 An EU citizen who intends to stay in Kor ea as a graduate trainee under the Korea-EU FTA 
may apply for General Training (D-4) visa. Accordi ng to Article 10(1) (Status of Sojourn) of the 
Immigration Control Act and Article 12 (Classification of Sojourn Status) of its enforcement decree, a 
D-4 visa can be issued to those who would receive education or training or engage in research activities at educational institutions, companies or organizations that do not classify for visa category 
D-2(Study Abroad). 
 
Paragraph 90, Page 26 
 41. Japan would like to clarify whether the Ag reement allows investors to transfer key 
personnel and graduate trainees to their establishments, while the entry and temporary stay of investors is not committed.  If it is committed in another section, please indicate in which section 
it can be found. 
 Investors are covered by the agreement provisions only insofar as they are themselves 
employed by the juridical person in question.  On ly under that condition they fall into the business 
visitors sub-category, as defined in Article 7.17.2( a)(i). In case they do not have a majority 
shareholding in the company, they may also fit into the definition of intra-corporate transferee 
(Article 7.17.2(a)(ii)). 
 
Paragraph 90, Page 26 
 42. Paragraph 2 (ii) of Article 7.17 of this Ag reement provides that, in assessing uncommon 
knowledge essential to an establishment's production, research equipment, techniques or 
management to be qualified as a specialist, membership in an accredited profession can be 
taken into account as proof that a Party has a high level of qualification. Does this mean that a Party gives due consideration to the qualification of the other Party? Do both Parties recognize 
specific professional qualifications mutually? 
 The provision in question requires the parties to  give due considerati on ("take into account") 
to the qualification referring to a type of wo rk or trade requiring technical knowledge, for the 
purposes of assessing knowledge of specialists. It do es not oblige the parties to mutual recognition of 
qualifications.  Mutual recognition is dealt with under Article 7.21 of the Agreement.  
   
 
 WT/REG296/2 
Page 18  
 
  Paragraph 91, Page 26 
 43. Please provide background as to why the entry and temporary stay of "Graduate 
Trainees" in particular are committed under this Agreement. 
 The EU consistently endeavours to include Gr aduate Trainees among the categories of natural 
person covered by the temporary entry and stay (Mode  4) provisions in bilateral trade agreements. 
Underlying rationale is that, simi lar to key personnel, EU companies should be able to post their 
graduate trainees to commercial presences in the othe r party for every sector where the later has taken 
establishment commitments.  Liberalization commitments Paragraph 96, Page 27 
 
44. According to the Factual Presentation, "neither Party may adopt new, or more, 
discriminatory measures with regard to services or  service suppliers of the other Party".  Japan 
would like to know whether this discipline includes the “ratchet effect" or not. 
 The above-mentioned discipline does not include the "ratchet effect".  
 
Sector Specific commitments 
Paragraph 106, Page 31 
 
45. Did both parties amend their laws and regulat ions in order to exceed the schedules of 
specific commitments attached to the Agreement compared with their GATS commitments? If 
so, please provide the outline of the amendm ent. Moreover, would these commitments be 
applied to other WTO members on an MFN basis? 
 The EU has not amended laws and regulations  with the specific purpose of "exceeding" the 
schedules of specific commitments attached to th e Agreement compared with its GATS commitments. 
  Korea has amended its legislation, such as Foreign Legal Consultant Act, Certified Tax 
Accountant Act and Certified Public Accountant Acts , in order to implement the Agreement.  These 
amendments entail opening up of the relevant markets, which exceeds Korea's GATS commitment. 
These commitments do not apply to other WTO members on an MFN basis. 
 
Paragraph 108, Page 31 - (to the EU) 
 
46. According to the EU’s schedule of commitments on services, the reservation on 
establishment in the telecommunications sector is “None”. In our understanding, in Italy, 
foreign investment from non-EU countries is permitted only under a situation where reciprocity 
is established. Also, we recognize that, in Greece, foreign investment is permitted up to 15 %. Were these reservations abolished at the date of en tering into force of this Agreement? If this is 
the case, can we understand that restrictions on fo reign investment are abolished in all the EU 
countries? Please provide us explanation of the current situation. 
 The EU is glad to confirm to Japan that, in  the EU-Korea FTA, there is no sector-specific 
limitation for the establishment in the telecommunication sector. 
 
   
  WT/REG296/2 
 Page 19 
 
 
  Paragraph 119, Page 33 (to the EU) 
 47. According to the Factual Presentation, limitatio ns on postal services remain in some EU 
Member States. On the other hand, regulatory provisions on postal services are included in Section E of Chapter 7. Japan would like to understand the background of this situation. 
 The EU is an advocate of liberalization in postal and courier market. Due to historic 
developments, these sectors were often operated by the state and are currently fully or partially 
operated by local incumbents. If and when liberalisa tion takes place, it is important to ensure that 
anti-competitive practices are avoided, and this is the aim of the future regulatory text to be developed 
in the review of Article 7.26.  The aim of EU is  to agree on common definitions such as postal item, 
independent regulator, universal service and licence and on minimum obligations to ensure 
competitive environment and transparency.  EU has highlighted its concerns in sectoral proposal 
S/CSS/W/61 as well as concluded a regulator y chapter on postal and courier services in 
EU-Cariforum EPA that can serve as example of EU  aspirations. The regulatory chapter only applies 
where market access commitments are taken.  
 
Regulatory Provisions 
Transparency and confidential information Paragraph 120, Page 33  48. With regard to Article 7.21 of the Agreement, do both countries consider mutual 
recognition of specific professional qualificatio ns? Has the Working Group on MRA already 
been held pursuant to paragraph 6 of Article 7.21? 
 No mutual recognition of specific professional qualifications is under consideration for the 
moment.  The Working Group on MRA pursuant to paragraph 6 of Article 7.21 has not yet been held.  General Provisions Electronic commerce Paragraph 156, Page 38  49. What is the reason why the provisions on E-co mmerce are set out in the same chapter of 
Trade in Services? Does this mean that commitm ents of market access and national treatment 
in E-commerce are subject to the content of Annex on Trade in Services?  
 The EU considers electronic commerce as the provision of cross-border services. The 
commitments of the Parties relating to electroni c commerce are indeed subject to the terms and 
conditions set out in the Chapter of Trad e in services, establishment and e-commerce. 
 
Intellectual Property Rights  
Paragraph 149, Page 37 
 
50. With regard to the protection of the geographical indications in Korea, Japan 
understands that there exist several systems other than "the Agricultural Products Quality 
Control Act of Korea" referred to in paragraph 149 of the Factual Presentation such as "the 
Fishery Products Quality Control Act of Korea" , "Unfair Competition Prevention Act", "the 
Collective Trademark for the Geographical Indica tions", and "the Certification Trademark for 
the Geographical Indications" which is curren tly under discussion in the Korean Diet. Japan 
would like to be informed about the relation am ong these systems for protection of the GIs and 
of the comparative levels of protection under these systems. WT/REG296/2 
Page 20  
 
   The provisions of the FTA states in footnote 2[51] to sub-section C that "geographical 
indication" in this subsection refers to: (…) (b) geographical indications as covered by the 
Agricultural Products Quality Control Act and the Liquor Tax Act of Korea”. In addition to those 
two acts, the Trademark Act with the provisions on collective marks and certification marks and the Unfair Competition Prevention Act provide protec tion for geographical indications in Korea. 
 
Paragraph 149, Page 37 (to Korea) 
 
51. Japan would like to confirm that the use of generic terms used to identify types of 
cheeses (e.g., camembert, mozzarella, emmental, grana, parmesan, brie, cheddar) is not 
restricted under the Korea-EU FTA. Would it be  possible for all suppliers to sell cheeses with 
these terms in the Korean market? 
 The geographical indications of Korea and of  the EU which are listed in Annex 10-A and 
10-B are protected respectively in the EU and in Korea in accordance with Article 10.18 and 10.21 of 
the EU-Korea FTA.  In addition, Article 10.21.4 st ates that "nothing in this Agreement shall oblige 
the European Union or Korea to protect a geographical indication which is not or ceases to be 
protected in its country of origin or which has fallen into disuse in that country".   
Trade and Sustainable Development 
Paragraph 163, Page 40 (To Korea) 
 
52. Paragraph 3 of Article 13.4 of the Agreemen t provides that both parties "will make 
continued and sustained efforts towards ratify ing the fundamental ILO conventions". Please 
provide information about the actions taken domest ically by Korea, if any, regarding the matter 
pertaining to unratified fundamental ILO conventions. 
 Korea maintains an open communications channe l with the ILO to discuss issues concerning 
fundamental ILO conventions. For the mome nt, no further action has been taken. 
 
Trade and Sustainable Development 
Paragraph 163, Page 40 
 
53. For what reason is the UN Framework Conven tion on Climate Change and its Kyoto 
Protocol specifically referred to, while there are a number of multinational environmental 
agreements? 
 A fundamental part of Trade and Sustaina ble Development Chapters within EU FTAs 
includes a commitment from each Party to effec tively implement all multilateral environmental 
agreements to which they are party. This is also true of the agreement with Korea (Article 13.5(2)). 
The particular reference to the UNFCCC in the EU-Korea FTA was a result of the negotiation and driven by a willingness from both Parties to em phasize the importance of these international 
agreements.  
 
Trade and Sustainable Development 
Paragraph 165, Page 40 
 
54. Paragraph 1 of Article 13.12 provides that "[ e]ach Party shall designate an office within 
its administration which shall serve as a cont act point" for the purpose of implementing 
Chapter 13. Meanwhile, in Chapter 14, it is not required to designate specific contact points for 
delivering a written request for consultation. Fo r what reason is the designation of contact  WT/REG296/2 
 Page 21 
 
 
  points needed only for Chapter 13? If the Parti es have already designated or have decided to 
designate, please inform us of the o ffices which will serve as contact points. 
 The contact point for Chapter 13 of the FTA is established to serve as a contact point between 
the Parties for the purpose of implementing the chap ter, including but not only for dispute settlement. 
The FTA also establishes other points of contact , for issues arising under the Dispute Settlement 
Chapter, Parties will revert to the most appropr iate contact point established under the various FTA 
Specialised Committees, Working Groups and othe r bodies, which will monitor implementation. 
 Under Chapter 13 the EU has established the following contacts:  
 
 General matters linked to th e operation of the Committee: 
 Patrick Pieroni 
 Policy Officer, Unit D1: Directorate Ge neral for Trade, European Commission 
 Tel: +32 299 17 64  Email: mpatrick.pieroni@ec.europa.eu  
 
 Civil Society Forum and Domestic Advisory Group:  Didier Bloch  Policy Officer, Unit A3: Information, Communication and Civil Society, Directorate-General  for Trade, European Commission  Tel: +32 2 298 76 25 
 Email: didier.bloch@ec.europa.eu  
 
Under Chapter 13 Korea has established the following contacts:  
  Labour: 
 Ms. PARK, Ji Hye,  Deputy Director, International Cooperation Di vision, Ministry of Employment and Labor, 
 Tel: +82-2-2110-7431,  Email: jhpark@moel.go.kr   
 
 Environment: 
 Mr. JO, Kyoowon,  Deputy Director, International Affairs Division, Ministry of Environment,  Tel: +82-2-2110-6543,   Email: jokw@korea.kr     
  
Paragraph 166, Page 40 
 
55. What is the reason for providing a specific dispute settlement procedure on matters of 
mutual interest arising under Chapter 13, indepe ndently of Chapter 14? In the case of raising a 
cross-cutting issue which is relevant to Chapt er 13 and another chapter, does a Party have 
recourse to both of the procedures in Chapters 13 and 14? 
 A specific dispute settlement procedure has b een adopted in Chapter 13 to complement the 
logic of international cooperation that social and en vironmental issues require and provide an efficient 
way to encourage permanent changes in a country's polic ies.  Also, such procedure allows to take into 
account the specific nature of the obligations – e.g.  by having recourse to specific expertise in the 
labour or environment area. In the ev ent that cross-cutting issues arise, they will be dealt with through 
the most appropriate procedure from chapter 13 or 14,  or sub-divided to be taken by both.  Issues 
arising will be dealt with on a case-by-case basis and the most appropriate procedure followed accordingly.  WT/REG296/2 
Page 22  
 
  Questions from the Delegation of the United States  
 
Trade remedies 
 
56. In paragraph 62, the Factual Presentation states that the Agreement "foresees the 
Parties' consideration of the public interests  before imposing antidumping or countervailing 
duties."  Could the Parties provide clarification as  to the meaning of "foresees" in this context?  
Are the Parties anticipating additional developm ents/discussions between the Parties prior to 
the institution of public interest considerations?  At what point in an investigation would such 
considerations be taken into account?  Before or a fter the imposition of measures?  Also, can the 
Parties explain as to how the public interest will  be taken into account?  In other words, will 
there be a standard or some other threshold against which any relevant public interest will be measured? 
 According to the text of the Agreement "the Parties shall endeavour to consider the public 
interests before imposing an anti-dumping or counter vailing duty". From this it is clear that such 
considerations should be taken before the impositi on of measures. The text of the Agreement does 
neither define any specific standard or threshol d nor does it foresee any additional discussion between 
the parties prior to the institution of public interest considerations.     
Services 
 
57. Paragraph 2 of Article 7.5 of the Agreement replicates certain of the disciplines included 
in Article XVI of the GATS, as they apply to Mo des 1 and 2.  A footnote to subparagraph 2.(a) – 
which is analogous to Article XVI.2.(a) of the GATS – provides that "[t]his subparagraph includes measures which require a service supplier of  the other Party to have an establishment 
… or to be resident in a Party’s territory as a condition for the cross-border supply of services." 
(a) Could Parties explain how, in their view, local presence requirements of the kind 
described in the footnote to subparagraph 2.(a) of Article 7.5 are included within the category of measures that create " limitations on the number of service 
suppliers"? 
(b) Do the Parties believe that Article XVI. 2.(a) of the GATS – the language of 
which is identical to that contained in subparagraph 2.(a) of Article 7.5 – creates 
an obligation on WTO Members to not impose local presence requirements in 
sectors subject to GATS commitments? 
 [No response provided]. 
 
58. Article 7.17 of the Agreement defines the ca tegories of natural persons covered by the 
Agreement's obligations on temporary presence.  For purposes of these obligations, "intra-
corporate transferees" are defined as natural perso ns employed by a juridical person of a Party, 
or partners in a juridical person of a Party, "other than as majority shareholders." 
 What is the policy purpose of excluding majo rity shareholders from the definition of 
intra-corporate transferees, and therefore from c overage of the obligation to allow transfer of 
key personnel? 
 
 The EU considers that majority shareholders (or "investors") are a specific category of natural 
persons, whose treatment does not necessarily need to be assimilated to that of key personnel. 
Furthermore, where they are, they are often consid ered as business visitors, instead of intra-corporate 
transferees.  Depending on the specific circumstanc es of each negotiation, the EU has in some cases 
included investors as a sub-category of key personnel.  However, that is not the choice retained in  WT/REG296/2 
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  KOR-EU, where investors are covered by the ag reement provisions only insofar as they are 
themselves employed by the juridical person in question.  Only under that condition they fall into the business visitors sub-category, as defined in Article 7.17.2(a)(i).  As the US Delegation points out, in 
case investors do not have a majority shareholding in the company, they may also fit into the 
definition of intra-corporate transferee (Article 7.17.2(a)(ii)). 
59. Article 7.21 of the Agreement provides that the Parties "shall encourage" relevant 
professional bodies in their respective territories  to jointly develop recommendations on mutual 
recognition. 
(a) What steps have Parties taken to im plement their respective obligations to 
"encourage" the development of reco mmendations by professional bodies? 
(b) What has been the outcome of this encouragement? 
 
 Both Parties have reached out  the relevant stakeholders including in particular industry 
associations and encouraged them to cooperate on mutual recognition.  These works should be further 
continued depending on the interest of both Parties. 
 
60. Paragraph 89 of the Factual Presentation no tes that among the EU’s MFN exemptions 
under the Agreement is one to "protect different ial treatment deriving from ratchet clauses." 
 Could the EU elaborate on the mechanics of this exemption and explain why it considers 
the exemption necessary, relative to its oblig ations under Articles 7.8 and 7.14 of the 
Agreement? 
 
 The relevant MFN exemption was included in th e text of the agreement to safeguard future 
liberalization under a ratchet mechanis m in subsequent trade agreements. 
 
61. Paragraph 98 of the Factual Presentation no tes that, whereas in the GATS in EU has 
scheduled a horizontal "public utilities carve-ou t," under the Agreement, it excludes activities 
that "are connected, even occasionally, wi th the exercise of official authority." 
(a) Could the EU clarify where within the Agree ment this exclusion is to be found? 
(b) With respect to the Agreement’s obligatio ns on services and investment, how 
does this exception relate to the excep tions in Articles 7.4 and 7.9 of the 
Agreement for services supplied, and ac tivities carried out, in the exercise of 
governmental authority? 
 - Specifically, what additional "activ ities" are excluded from the EU's 
commitments on services and investment by virtue of the exception for 
"activities connected, even occasionally, with the exercise of official authority" 
that would not otherwise be excluded by virtue of the exceptions in Articles 7.4 
and 7.9? 
 - Are the terms "governmental authority" (as contained in Articles 7.4 and 7.9) 
and "official authority" (as contained in the exception described in Paragraph 98 of the Factual Presentation ) intended to have different meanings? 
 
 According to Annex 7-A to the Agreement " economic activities considered as public utilities 
at a national or local level may be subject to public monopolies or to exclusive rights granted to 
private operators".  The same text is included in the EU's GATS schedules of commitments.]  
 
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