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Vol. 1985/0205 
  
 
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Conformém ent au règlement (CEE, Euratom) n° 354/83 du Conseil du 1er février 1983 
concernant l'ouverture au public des archives historiques de la Communauté économique 
européenne et de la Communauté européenne de l'énergie atomique (JO L 43 du 15.2.1983, 
p. 1), tel que modifié par le règlement (CE, Euratom) n° 1700/2003 du 22 septembre 2003 
(JO L 243 du 27.9.2003, p. 1), ce dossier est ouvert au public. Le cas échéant, les documents 
classifiés présents dans ce dossier ont été déclassifiés conformément à l'article 5 dudit 
règlem ent. 
In accordance with Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983 
concerning the opening to the public of the historical archives of the European Econom ic 
Communit y and the European Atom ic Energy Communit y (OJ L 43, 15.2.1983, p. 1), as 
amended by Regulation (EC, Euratom) No 1700/2003 of 22 September 2003 (OJ L 243, 
27.9.2003, p. 1), t his file is open to the public. Where necessary, classified documents in this 
file have been declassified in conformity with Article 5 of the aforementioned regulation.  
In Übereinstimmung mit der Verordnung (EWG, Euratom) Nr. 354/83 des Rates vom  1. 
Februa r 1983 über die Freigabe der historischen Archive der Europäischen  
Wirtschaftsgemeinschaft und der Europäischen Atomgem einschaft (ABI. L 43 vom  15.2.1983,  
S. 1), geändert durch die Verordnung (EG, Euratom) Nr. 1700/2003 vom 22. Septem ber 2003  
(ABI. L 243 v om 27.9.2003, S. 1), ist diese Datei der Öffentlichkeit zugänglich. Soweit  
erforderlich, wurden die Verschlusssachen in dieser Datei in Übereinstimmung mit Artikel 5  
der genannten Verordnung freigegeben.  
COMMISSION O F  TH E  EUROPEAN COMMUNITIES
C0M(85) 567 fin a l  
Brussels, 18 October 1985
COMMUNICATION F R O M  THE COMMISSION TO  THE COUNCIL
P a rtic ip a tio n  of the Community in the Review Conference on the UNCTAD Set of  
M ulti la te r a lly  Agreed Equitable P rinciples and Rules fo r the Control of  
R e s tric tiv e  Business Practices.
CO M (85) 567 fin a l

Memorandum from the Commission to the Council
Re.: P a rtic ip a tio n  of the Community in the Review Conference
on the UNCTAD Set of M ulti la te r a lly  Agreed Equitable Principles  
and Rules fo r the Control of R e s tric tiv e  Business Practices
Introduction
When the United Nations General Assembly adopted the set of M ulti la te ra lly  
Agreed P rinciples and Rules on Restrictive Business Practices (the "R es trictive  
Practices Code") on 5 December 1980 (Resolution 3 5 /6 3 ), i t  decided to  
hold a conference under UNCTAD auspices in 1985 to review a l l  aspects  
of the Code.
The Review Conference is scheduled fo r 4-14  November 1985.
The proposals fo r improving the Code th at w ill be considered at the  
Review Conference and the proposed rules o f procedure fo r the Conference  
were discussed at the 4th session of the Intergovernmental Group of  
Experts (IG E ), which has so fa r provided the in s titu tio n a l machinery  
of the Code, in A p ril 1985.
Problems are raised by both aspects :
-  the status under which the Community p artic ip a tes in the Conference  
under rules 1  and 33 of the proposed rules of procedure;
-  the proposed amendments or c la rific a tio n s  of the Code.
1. The Community's status at the Review Conference
Under rules 1  and 33 of the d ra ft rules of procedure fo r the Conference  
(TD/RBP/CONF 2/2 -  see Annex 1) the Community would be able to p a rtic ip a te ,  
and not ju s t attend as an observer as i t  has previously been re s tric te d  
to doing at sessions of the IGE, but would not have the rig h t to  
vo te.

-  2 -
This proposal was discussed at the 4th session of the IGE. Group D  
voiced reservations against the proposal, the Group of 77 considered  
i t  a basis fo r negotiation and Group B  supported i t .  A  reservation  
was entered on behalf of the Community and its  Member States (Annex 2 ).
O n the fringes of the session, some members of Group B  (USA, A u stria,  
Sweden, Switzerland) expressed reservations against a clause expressly  
conferring a rig h t to vote on the Community.
The matter has already been discussed in the RELEX group on the basis  
of the memorandum from the Commission to the Council dated 8 March 1985  
(C O M  (85) 91 f i n a l ) .  I t  is necessary to decide the position the Community  
and its  Member States w ill take up at the opening of the forthcoming  
Conference.
Since the Conference is a review conference, the Community maintains  
that the rules of procedure of the main committees o f UNCTAD are  
inapplicable and therefore do not prevent the Community's p a rtic ip a tin g  
in such a conference on the same basis as its  own Member S tates.
A  more fundamental point is that the Community cannot be expected to  
acquiesce in the substantive amendments which the Conference might decide  
to make to the Code, unless i t  has been able to express, i f  necessary  
through the veto, any objections i t  might have to them. Section B  ( i i )(8 )  
of the Code, which recognizes regional groupings of States as equivalent  
to States or Governments as fa r as the ap p licatio n  o f the Code is  
concerned, means th at regional groupings lik e  the Community are expected  
to honour the m orally binding commitments assumed in accepting the  
Code. Consequently, unless the Conference concedes this p o in t,  
i t  w ill be necessary to enter a reservation as to our acceptance of  
commitments that would be contrary to Community law.

- 3 -
The Commission therefore requests the Council's to authorise i t  
negotiate fo r the Community a status allowing i t  to play a f u ll  
part in the Review Conference. For this purpose, as suggested in  
C O M  (85) 166 f in a l,  i t  is proposed th at the Conference be asked to :
1) delete the footnote to rule 1(c) of the d ra ft rules of procedure,  
and
2) add a paragraph 2 to rule 33 reading as follows :
"Regional Groupings of S tates, in matters w ithin th e ir competence,  
s h a ll exercise th e ir rig h t to vote with a number of votes equal  
to the number of th e ir  Member States which have accepted the  
Set of P rinciples and Rules. Such organizations s h a ll not exercise  
th e ir rig h t to vote i f  th e ir Member States exercise th e irs , and  
vice versa."
2. Substantive proposals
The substantive proposals fo r improvements in the Code are set out in  
note TD/RBP/Conf. 2 /4 ,the conclusions of which are attached as Annex 3.
The only proposals fo r amendments to the te x t of the Code re la te  to the  
in s titu tio n a l machinery. The m ajority of the proposals c a ll fo r agreement  
on the in te rp re ta tio n  of provisions already in the Code and on the  
resu ltin g  im plications fo r the ap p licatio n  of those provisions.
(a) Proposals not requiring amendment of the Code :
1) establishment of "focal points" in the various countries  
fo r matters connected with ap p licatio n  of the Code. This is  
acceptable, but the Community's acceptance should be conditional  
upon a s a tis fa c to ry  solution to the problem of its  status at  
the Conference ;
2) improvement of n o tific a tio n  procedures provided fo r by national  
law. This proposal was rejected by Group B  at the IGE's preparatory  
meeting in A p ril 1985 and the arguments the S e cretariat document  
advances do not give us reason to change our mind ;

-  4 -
3) wider use of the consultation procedure provided fo r by the Code  
(section 4 (F )). This proposal was rejected by Group B  at the  
IGE's preparatory meeting. The Commission was not so opposed to  
i t  as the rest of Group B. The Commission finds i t  hard to  
ju s tify  a re s tric tio n  of the consultation procedure to the cases  
covered by the 1979 O EC D  Recommendation, which would amount to  
applying the procedure only in relatio n s between Group B  countries  
and refusing i t  in relatio n s with UNCTAD countries g en erally.
Group B  seems u n lik e ly  to change its  mind. The proposal is  
supported by the Group of 77 and Group D  ;
4) c a ll fo r voluntary fin a n c ia l contributions by States towards  
technical assistance on a m u ltila te ra l basis. This proposal was  
not w ell-received by Group B  at the preparatory meeting. A s fa r as  
the Community as concerned, such fin a n c ia l contributions must be  
conditional on its  being given a s a tis fa c to ry  status both at the  
Revision Conference and at meetings of the IGE;
5) the holding of consultations on a formal or inform al basis
at or on the fringes of the regular meetings of the IGE. This  
proposal was made in A p ril 1985 by Group B  and should be accepted  
insofar as the consultations are at the level of the experts  
attending the IGE meetings.
b) amendments to the Code (in s titu tio n a l machinery) : I t  is proposed
to replace the IGE by a Special Committee on R e s tric tiv e  Practices,  
in order to b etter re fle c t the importance of r e s tr ic tiv e  business  
practices fo r the United Nations. In UNCTAD Special Committees  
rank higher than IGEs. Group B  rejected th is proposal at the  
A p ril meeting, both because of the budgetary im plications -

-  5 -
contested by the UNCTAD S ecretariat -  and because some Group B  
delegations, notably the US, wish to keep the work of the IGE at  
the level of meetings of experts and avoid a p o litic iz a tio n  of  
its  a c tiv it ie s . The experience in the IGE has been that the Group  
of 77 do not have a n titru s t experts a va ilab le to take part in technical  
discussions and send members of th e ir permanent delegations in  
Geneva who tend to p o litic iz e  the discussions.
The S ecretariat argues that under UNCTAD rules Special Committees  
can decide not to use the rules of procedure of main committees.
A  Special Committee could therefore decide to admit the Community  
as a f u l l  member. This would be a reason fo r the Community to  
support w ithin Group B  the establishment of a Special Committee.
I f  Group B  agreed to an amendment of section G (i) of the Code to  
this e ffe c t, i t  would have to be sp ecified  th at the Special Committee  
to act as the in s titu tio n a l machinery would be composed not only  
of States that had accepted the Code but also regional groupings  
of States th at had done so.
I f  Group B  stood firm  in its  opposition, the Community could f a l l  
in behind i t  in return fo r a commitment to support the Community  
in seeking f u l l  status under the present machinery.
In conclusion, the Commission considers th at the Community could accept  
in p rin c ip le  the proposals referred to at para. 61 (2) (a ), ( f ) ,  (h) and  
( i )  and could negotiate on (d ), (e) and (g ).

Annexe 1
TD/RBP/CONF.2/2  
page 1
DRAFT PROVISIONAL RULES OF PROCEDURE OP THE CONFERENCE
Chapter I
REPRESENTATION AND CREDENTIALS "* ·
Participation
Rule 1
Participation in the Conference shall he open to.t '
(a) All States,
(h) Namibia, represented by the United Nations Council for Namibia,
[ (2) Regiona] groupings of States which have competence in the area of  
restrictive business practices and have accepted the Set of Multilaterally Agreed  
■équitable Principles and Rules for the Control of Restrictive Business  
Practices, */ and , ]
(d) Other participants referred to in operative paragraph 4 of 
General Assembly resolution 5?/l53 of 20 Deoember 1978. '
Composition of delegations
Rule 2 ,  ■/ ;  .
- ,  L ’  '  ' '  .
Each delegation participating in the Conference'shall consist of a head of  
delegation, and not more than two other accredited representatives, and such  
alternate representatives and advisers as may be required. v
\ '
Alternates and advisers _
Rule 5
The head of the delegation may.designate an alternate representative or an  
ttflviaoai -bo ttdt as a représentative.
Submission of predentin .
Rule 4 1
The credentials of representatives of States and the. names of alternat^
representatives and advisers shall be submitted to the Secretary-General of.  
UNCTAD, if possible not later than one week before the date fixed for the opening
1 / Reference to regional groupings of Stattea in this rule is based on.the  
definition contained in section B, paragraph 8, of the Set of Multilaterally
Agreed Equitable Principles and Rules for the Control of Restrictive Business  
.. ■  .0 -~ce. .  . .  rv urr.it im· Poes not confer on such regional groupings the righi
tO YO’ P’.

·· ,  TD/RBP/CONF.2/2  
page 7
day preoeding the meeting-. The President may, however, permit the discussion
and consideration of amendments, even though these amendments have not been  
circulated, or have only been circulated the-same day.
Decisions on competence ' ■
Rule 28
Subject to rule 19, any motion calling for a decision.on the competence of  
the Conference to consider any matter, *or to adopt a proposal, or an amendment  
submitted to it, shall bo put to the vote before the matter is considered or a  
vote is taken on the--proposal or amendment in question.
Withdrawal of nronosals and motions
Rule 29
A proposal or a motion may be withdrawn by its sponsor, at any time before  
voting- on it has commenced, provided that it has not been amended by decision of  
the Conference, A proposal" or a motion thus, withdrawn may be reintroduced by  
any representative with its original priority, provided he does so promptly and  
it has not been substantially changed.
Consideration of -programme budget involi oat ions.
Before the Conference takes a decision,or makes a recommendation, the  
implementation of which might have programme budget implications for the  
Vnited Hâtions, it shall receive and consider a report cm the secretariat -r 
such implications. ■
Reconsideration of -proposals
Rule 31 '
When a proposal has been adopted or rejected, it may not be reconsidered  
unless the Conference, by a two-thirds majority of the representatives present  
and voting,, so decides. Permission to speak on the motion to reconsider sha_l be  
accorded only to two speakers opposing the motion, after which it shall be pub  
to the vote immediately.
Consensus
1,  The 'Conference shall endeavour to ensure that all its substantive dooieions  
are taken by consensus,
?. Notwithstanding any measures that may be taken in compliance -with paragraph 1,  
a proposal before the Conference shall be voted on if a representative so requests.
Voting rights
Rule
'· . \
Each State participating in the Conference shall have one vote.

Annexe 2
1.0 gt  Provisional agenda Tor the Conferenoe
(Agenda item 3 (b))
59· The Intergovernmental Group of·Experts had before it' a draft provisional  
agenda for the Conference submitted by the UNCTAD secretariat (TD/B/RBP/26).
60, At the closing meeting, on 30 April. 1985,  the Chairman introduced a slightly  
revised proposal, which he had submitted as a result of informal consultations  
(TD/3/RBP/30).
Action by the Intergovernmental Group of Experts '  x
61, At the same meeting the Group adopted the provisional agenda for the  
Conference proposed by the Chairman (see annex III below).
C.  Provisional rules of procedure for the Conference
(Agenda item 5 (0 ?  ?
62, At the closing meeting, on 30 April 1985, the Chairman drew attention to  
the draft provisional rules of. procedure for the Conference prepared by the  
UNCTAD secretariat (TD/B/HBP/ 2 8)  and to. the following changes to rules.. 1 and 4  
which had been agreed upon in Informal consultations :
(a) Rule 1: The text of paragraph (c) should be placed in square
brackets;
(b) Rule 4: The text should be completed by adding "or by the
Permanent Mission to the United Nations of the State at Geneva,  
upon the explicit authorization of the Head of State or Government  
or the_Minister for Foreign Affairs".
65.  The Chairman added, that with respeot to rule 4» the suggested ohange would
bring the rule into conformity with the corresponding rule of the rules of  
procedure of the United Nations Conference on'Conditions for Registration of  
Ships. However, the Senior Legal Officer· of UNCTAD had been advised by the  
Office of Legal Affairs that this practice in UNCTAD, whereby permanent missions  
could issue credentials in respect of representatives to United Nations  
conferences, was not in accordance with established United Nations practice.
(64^ The representative of Italy,  speaking on behalf of the European Economic  
Community and its member States,  reserved his position with respect to the  
footnote to rule 1 (c) and the related rule, 33 of the draft provisional rules  
of procedure. ·  ·
Action by the Intergovernmental Group of Experts
G5.  At the same meeting, the Group adopted as the provisional rules of procedure  
of the Conference the draft provisional rules submitted by the UNCTAD secretariat  
(TD/3/RBP/28), with the revisions to rules 1 and 4 proposed by the Chairman. 8/
It was understood that the outstanding issues·would be resolved by the conference  
when adopting its rules of procedure.
8/ The revised text will be issued as document TD/RBP/C0NF.2/2.

Page 15
I  ,
Annexe 3
fChapter II
CONCLUSIONS CONCERNING THE IMPROVEMENT AND FURTHER'DEVELOPMENT OF THE SET OF
' ·  .  '  PRINCIPLES AND RULES
56. As described throughout this-note, the Set of Principles and Rules lias not 
*''vcr (i UP th- expectation? placed on it by Governments at the time of its adoption 
..n December 1980. In the last five years, restrictive business practices have 
oecomc nn increasingly important component of international trade ‘ policy. This 
tr^nd is the result of a serious dichotomy in government policy which, on the one 
·  advocates free market forces in international trade while, on the other, sub- 
m,.rs to strong protectionist pressure’  resulting in an intricate network of market-· 
iii}’ ,  ^ arrangements restraining trade, such as, for example, voluntary export 
res t r.i.i nts.  All such restraints to trade inevitably involve restrictive business 
pi net ice arrangements among enterprises in both the exporting as well ns the 
import mg countries, ,
57 Full implementation by all States of their commitment to the Set of Principles 
and Ruies would undoubtedly have averted 'this negative trend. Hence the requests 
.rom a number of States, and1  in 'particular from the developing countries, for a
mnedatory cr^e^ally binding Set of Principles and Rules.
uS. Since the Set was unanimously adopted by .the General Assembly in the form of a 
resolution, it clearly involves a morally binding commitment and may be cited in 
national and international proceedings. Therefore", while there is no contractual 
c,>.. iga Lion as such - as for example is the case with, an international treaty - rtev- 
n.  - '-..ess tne fulfilment of the. commitments accepted (as in the case of an interna- 
’ . “-ona, treaty) _  largely depend upon the willingness of States, and in particular the 
p--ncipal trading countries, to respect them and not to search for ways and means 
to circumvent thorn.
.JA.««»«Id  therefore^"pessary for the Conference to decide that while there 
nt this time, to change the provisions of the Set, it .in esse·· -1, in 
!  - “iisur o the. "ad equ a t P . *  imp 1 emeu t f l  t ion of the Sot at both national and nter-
t '.orvii invers, th'flt States decide upon concrete measures to promote and enhance 
tt? application.
j\n important_outcomo of the Conference would therefore include an ’greed dec- 
I·-ration by the Conference, that five years after'the adoption of t1-1:  Set res trie4·  
business practices'have. become one of the main barriers to international trade 
„i.r/tnsnc'fions ,  * Fia'r‘lfrom*'helhg'  controlled or eliminated from the international trad­
ing system, restrictive business practices hove been increasingly used as an 
i'istrui , ”'nt  of protectionism in the face of efforts to reduce more traditional types 
of governmental restrictions to trade such as tariffs and non-tariff barriers,
.(’!■ Conscious of this fact, the Conference should urge all States to take concrete 
action,  in line with their commitments to the Set of Principles and Rules ,  .to olIm- 
;!’,r;r’ restrictive, business practices from international trodo transactions, Rather 
man ci.iugmg the. provisions of the Set, the Conference should endeavour to decide 
upon the following issues:
(1) 1c urge States to avoid entering into arrangements in restraint of trade 
resulting in the use. of restrictive business practices as a palliative to 
governmental measures as covered under the General Agreement on Tariffs and 
Trade.
(2) fo strengthen the. control of restrictive business practices at both national,
* ^i.on n  \ _international levels, by taking concrete steps, .towards the
.imp
ionicntation of the. Set oT'Principles-’ and  Rules ,  These "steps 1  may :  include, 
^■„particular :  .....

(n) The establishment by Stats® ofjfoaalipeints in thsis rsspsotive national  
or regional administrations Tor' contacts"'with  enterprises and other 
States in order to enhance and facilitate consultations,  discussion and 
exchango of views between them on the application of the Set. These 
focal points should inform annually the Secretary-General of UNCTAD of 
their activities, within the existing procedure in provision 2 of sec- '  
tion F of the· Set. Developing countries should be assisted in estab­
lishing such focal points through multilateral and bilateral technical 
co-operation, -in particular through exchange of personnel at national 
or regional levels; ,  .
(b) The establishment or improvement by States, at national and regional 
levels, of notification procedures for enterprises concerning the use 
of restrictive business"" practices in import and export transactions,
\fand such information to be.made publicly available;
L
(c) The strengthening of notification procedures among States by agreeing 
that when it comes t.o the attention of a State that a restrictive busi­
ness practice 1  lias,  or is .likely to have, adverse effects on interna­
tional trade, particularly that of the developing countries, and the 
economic development of those countries, it should promptly notify the 
State or States concerned in order to identify the necessary action in
,  accordance with the provisions 4 - 9 of section E of the. Set to facili­
tate appropriate action.
(cO Stimulation of the use of the consultation procedure by agreeing that, 
when a State decides to undertake cn investigation of a practice which 
it believes has, or is likely to have, adverse effects on international 
?.r.i viler, has ir.plications for the laws, policies cr national 
interests of another State or States, it should promptly notify such 
State or States of the investigation to the extent possible and may 
enter into consultations on the matter in accordance with provision 4 of 
section F of the Set before initiating judicial or administrative 
action,
(e) An invitation to States, in particular the developed countries·, to make
voluntary financial and other contributions for the technical assist- 
’ance, advisory and training programmes on restrictive business prac­
tices as called for in provisions 6 arid 7 of the Set. States may also be 
invited to pursue in the Governing Council of the United Nations Devel­
opment Programme the allocation of resources for the implementation of 
the work in this area;
(f) A request for further studies to bo prepared by the international 
institutional machinery under provision 3 of section G of the Set, tn 
particular concerning the link between restrictive business practice 
policies and governmental trade policies;
(g) The establishment of a Special Committee on Restrictive Business .Prac­
tices to perform the function of the international intergovernmental 
machinery called for in section G of the Set, in place of the Intergov-. 
emmental Group of Experts, which does not properly reflect the impor-
:  tance· of the .issue of restrictive business practices and its adverse 
effects on international trade, particularly that of developing coun- 
tries, and the economic development of these countries;
(h) The holding of intergovernmental consultations on a formal or informal
basis, at each annua 1—-s'Cssiorr  'o 'f the intergovernmental machinery, for 
the. purpose of improving the implementation of provision, 4 of section C 
and provision 3(a)'of section G of the Set. .
(i) ,  A recommendation to the General Assembly that a Review Conference on
Restrictive Business Practices should be convened in 1990.