EN Official Journal of the European Communities L 347/45

COUNCIL DECISION

of 28 November 1997

concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the results of the WTO negotiations on basic telecommunications services

(97/838/EC)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 57, 66, 90, 99, 100, 100a and 113, in conjunction with Article 228 (2) and the first subparagraph of Article 228 (3) thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Parliament (2),

Whereas the Marrakesh Agreement establishing the World Trade Organization and its related agreements, the Ministerial Decisions and Declarations, including the Ministerial Decision on Negotiations on Basic Telecommunications, as well as the Annex on Telecommunications and the Annex on Negotiations on Basic Telecommunications were approved by Council Decision 94/800/EC of 22 December 1994 (3);

Whereas the overall commitments in basic telecommunications services negotiated by the Commission, on behalf of the European Community and its Member States, constitutes a satisfactory and balanced outcome;

Whereas on 30 April 1996 the Council authorized the Commission to approve, on behalf of the European Community and its Member States, the Decision of the Negotiating Group on Basic Telecommunications and the WTO Council for Trade in Services adopting the Fourth Protocol to the General Agreement on Trade in Services and the Decision of the Council for Trade in Services on Commitments in Basic Telecommunications;

Whereas on 14 February 1997 the Council authorized the Commission to submit to the WTO the final schedule of commitments on behalf of the European Community and its Member States;

Whereas the competence of the Community to conclude international agreements does not derive only from explicit conferral by the Treaty but may also derive from other provisions of the Treaty and from acts adopted pursuant to those provisions by Community institutions;

Whereas where Community rules have been adopted in order to achieve the aims of the Treaty, Member States may not, outside the framework of the common institutions, enter into commitments liable to affect those rules or alter their scope;

Whereas some commitments on basic telecommunications services fall within the competence of the Community under Article 113 of the Treaty; whereas, furthermore, other commitments on basic telecommunications services affect Community rules adopted on the basis of Articles 57, 66, 90, 99, 100 and 100a and may therefore only be entered into by the Community alone;

Whereas the use of Article 100 of the Treaty as a legal base for this Decision is justified also by the fact that the aforementioned commitments on basic telecommunications services are likely to affect Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (4) and Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (5), which are based on Article 100 of the Treaty;

Whereas, by their nature, the Agreement establishing the World Trade Organization and the Protocols to the General Agreement on Trade in Services, are not susceptible to being directly invoked in Community or Member States courts,

HAS DECIDED AS FOLLOWS:

Sole Article

1. The Fourth Protocol to the General Agreement on Trade in Services concerning basic telecommunications services is hereby approved on behalf of the European Community with regard to that portion of it which falls within the competence of the Community.

2. The text of the Fourth Protocol is attached to this Decision, as are also the following:

— the schedule of specific commitments of the Community and the Member States, which is part of the overall package of commitments reached at the WTO on 15 February 1997,

— the decision of the Council for Trade in Services on commitments in basic telecommunications, and

— the report of 15 February 1997 by the Group on Basic Telecommunications to the Council for Trade in Services.

3. The President of the Council is hereby authorized to designate the person(s) empowered to sign the Fourth Protocol to the General Agreement on Trade in Services in order to bind the Community with regard to that portion of the Protocol falling within its competence.

Done at Brussels, 28 November 1997. For the Council The President G. WOHLFART

(1) OJ C 267, 3. 9. 1997, p. 80.

(2) OJ C 339, 10. 11. 1997.

(3) OJ L 336, 23. 12. 1994, p. 1.

(4) OJ L 225, 20. 8. 1990, p. 1.

(5) OJ L 225, 20. 8. 1990, p. 6.