WORLD TRADE
ORGANIZATIONWT/L/4361
7 December 2001
(01-6236)
EUROPEAN COMMUNITIES – THE ACP-EC PARTNERSHIP AGREEMENT
Decision of 14 November 2001
The Ministerial Conference,
Having regard  to paragraphs 1 and 3 of Article IX of the Marrakech Agreement Establishing
the World Trade Organisation (the "WTO Agreement" ), the Guiding Principles to be followed in
considering applications for waivers adopted on 1 November 1956 (BISD 5S/25), the Understandingin Respect to Waivers of Obligations under the General Agreement on Tariffs and Trade 1994,
paragraph 3 of Article IX of the WTO Agreemen t, and Decision-Making Procedures under Articles
IX and XII of the WTO Agreement agreed by the General Council (WT/L/93);
Taking note of the request of the European Communities (EC) and of the Governments of the
ACP States which are also WTO members (hereinafter also the “Parties to the Agreement”) for a
waiver from the obligations of the European Communities under paragraph 1 of Article I of the
General Agreement with respect to the granting of preferential tariff  treatment for products originating
in ACP States as required by Article 36.3, Anne x V and its Protocols of the ACP-EC Partnership
Agreement (hereinafter also referred to as “the Agreement”)
2;
Considering  that, in the field of trade, the provis ions of the ACP-EC Partnership Agreement
requires preferential tariff  treatment by the EC of exports of products originating in the ACP States;
Considering  that the Agreement is aimed at improving the standard of living and economic
development of the ACP States, including the least developed among them;
Considering  also that the preferential tariff  treatment for products originating in ACP States
as required by Article 36.3, Annex V and its Protocol s of the Agreement is designed to promote the
expansion of trade and economic development of beneficiaries in a manner consistent with the
objectives of the WTO and with the trade, financial and development needs of the beneficiaries and
not to raise undue barriers or to create undue difficulties for the trade of other members;
Considering  that the Agreement establishes a preparatory period extending until 31 December
2007, by the end of which new trading arrangements shall be concluded between the Parties to the
Agreement;
Considering  that the trade provisions of the Agreement have been applied since 1 March 2000
on the basis of transitional measures adopted by the ACP-EC joint institutions;
                                                     
1 Previously circulated in WT/MIN(01)/15.
2 As contained in documents G/C/W/187, G/C/W/204, G/C/W/254 and G/C/W/269).WT/L/436
Page 2
Noting  the assurances given by the Parties to the Agreement that they will, upon request,
promptly enter into consultations with any interested  member with respect to any difficulty or matter
that may arise as a result of the implementation of the preferential tariff  treatment for products
originating in ACP States as required by Article 36.3, Annex V and its Protocols of the Agreement;
Noting  that the tariff applied to bananas imported in the "A" and "B" quotas shall not exceed
75 €/tonne until the entry into force of the new EC tariff-only regime.
Noting  that the implementation of the preferential tariff treatment for bananas may be affected
as a result of GATT Article XXVIII negotiations;
Noting  the assurances from the Parties to the Agreement that any re-binding of the EC tariff
on bananas under the relevant GATT Article XXVIII procedures should result in at least maintaining
total market access for MFN banana suppliers and their willingness to accept a multilateral control on
the implementation of this commitment.
Considering that, in light of the foregoing, the exceptional circumstances justifying a waiver
from paragraph 1 of Article I of the General Agreement exist;
Decides  as follows:
1. Subject to the terms and conditions set out hereunder, Article I, paragraph 1 of the General
Agreement shall be waived, until 31 December 2007, to the extent necessary to permit the
European Communities to provide preferential tariff  treatment for products originating in
ACP States as required by Article 36.3, Annex V and its Protocols of the ACP-EC Partnership
Agreement,3 without being required to extend the same preferential treatment to like products
of any other member.
2. The Parties to the Agreement shall promptly notify the General Council  of any changes in the
preferential tariff  treatment to products originating in ACP States as required by the relevant
provisions of the Agreement covered by this waiver.
3. The Parties to the Agreement will, upon request, promptly enter into consultations with any
interested member with respect to any difficulty  or matter that may arise as a result of the
implementation of the preferential tariff  treatment for products originating in ACP States as
required by Article 36.3, Annex V and its Protocols of the Agreement; where a member
considers that any benefit accruing to it under the General Agreement may be or is being
impaired unduly as a result of such implementation, such consultations shall examine the
possibility of action  for a satisfactory adjustment of the matter.
                                                     
3 Any reference to the Partnership Agreement in this Decision shall also include the period during
which the trade provisions of this Agreement are applie d on the basis of transitional measures adopted by the
ACP-EC joint institutions.WT/L/436
Page 3
3bis With respect to bananas, the additional provisions in the Annex shall apply.
4. Any member which considers that the preferential tariff  treatment for products originating in
ACP States as required by Article 36.3, Annex V and its Protocols of the Agreement is being
applied inconsistently with this waiver or that any benefit accruing to it under the GeneralAgreement may be or is being impaired unduly as a result of the implementation of the
preferential tariff treatment for products originating in ACP States as required by Article 36.3,
Annex V and its Protocols of the Agreement and that consultations have proved
unsatisfactory, may bring the matter before the General Council , which will examine it
promptly and will formulate any recommendations that they judge appropriate.
5. The Parties to the Agreement will submit to the General Council an annual report on the
implementation of the preferential tariff  treatment for products originating in ACP States as
required by Article 36.3, Annex V and its Protocols of the Agreement.
6. This waiver shall not preclude the right of affected members to have recourse to
Articles XXII and XXIII of the General Agreement.WT/L/436
Page 4
ANNEX
The waiver would apply for ACP products under the Cotonou Agreement until
31 December 2007.  In the case of bananas, the waiver will also apply until 31 December 2007,subject to the following, which is without prejudice to rights and obligations under Article XXVIII.
- The parties to the Cotonou Agreement will initiate consultations with Members exporting to
the EU on a MFN basis (interested parties) early enough to finalize the process of
consultations under the procedures hereby established at least three months before the entry
into force of the new EC tariff only regime.
- No later than 10 days after the conclusion of Article XXVIII negotiations, interested parties
will be informed of the EC intentions concerning the rebinding of the EC tariff on bananas.
In the course of such consultations, the EC will provide information on the methodology used
for such rebinding.  In this regard, all EC WTO market-access commitments relating to
bananas should be taken into account.
- Within 60 days of such an announcement, any such interested party may request arbitration.- The arbitrator shall be appointed within 10 days, following the request subject to agreement
between the two parties, failing which the arbitrator shall be appointed by the Director-General of the WTO, following consultations with the parties, within 30 days of the
arbitration request.  The mandate of the arbitrator shall be to determine, within 90 days of his
appointment, whether the envisaged rebinding of the EC tariff on bananas would result in at
least maintaining total market access for MFN banana suppliers, taking into account the
above-mentioned EC commitments.
- If the arbitrator determines that the rebinding would not result in at least maintaining total
market access for MFN suppliers, the EC shall rectify the matter.  Within 10 days of the
notification of the arbitration award to th e General Council, the EC will enter into
consultations with those interested parties that requested the arbitration.  In the absence of a
mutually satisfactory solution, the same arbitrator will be asked to determine, within 30 days
of the new arbitration request, whether the EC has rectified the matter.  The second arbitrationaward will be notified to the General Council.  If the EC has failed to rectify the matter, this
waiver shall cease to apply to bananas upon entry into force of the new EC tariff regime.  The
Article XXVIII negotiations and the arbitration procedures shall be concluded before the
entry into force of the new EC tariff only regime on 1 January 2006.
__________