Recommendation for a Council common position concerning the approval of the Protocol governing the accession of the Republic of South Africa to the Fourth ACP-EC Convention as revised by the Agreement signed in Mauritius on 4 November 1995
Date: 1997-03-12
Institutions: European Commission
Subjects: South Africa, cooperation agreement (EU), fourth Lomé Convention, protocol to an agreement, trade agreement (EU)

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels,  12.03.1997 
COM(97)  107  final 
97/0108(AVC) 

Recommendation  for a 

COUNCIL COMMON POSITION 

concerning the approval of the Protocol governing 
the accession of the Republic of  South Africa 
to the Fourth ACP-EC Convention 
as revised by the Agreement signed in 
Mauritius on 4 November 1995 

(presented by the Commission) 

Introduction 

On  19  June  1995  the  Council  of  Ministers  approved  directives  for 
the  European 
Commission  to  negotiate  a  framework  for  the  longer  term  relationship  between  the 
European  Community  and  the  Republic  of  South  Africa.  The  directives  propose  that  this 
relationship  be  built  on  two elements:  (a)  a  Protocol  to  the  Lomé  Convention  laying  down 
the  terms  and  conditions  of  South  Africa's  accession  to the  Convention,  and  (b)  a  bilateral 
Trade and  Co-operation  Agreement between  the European  Community  and  South  Africa. 

The  Community  proposal  responded  to  the  request  of  the  government  of  South  Africa, 
expressed  in  a  letter  of  Deputy  President  Thabo  Mbeki  in  November  1994,  "to  open 
negotiations  with  a  view  to  establishing  the  closest  possible  relationship  with  the  Lorhé 
Convention".  South  Africa  also  asks  "that  negotiations  should  cover  a  possible  agreement 
with 
the  European  Union  on  specific  elements  that  might  more  appropriately  be 
accommodated  outside  the  Lomé Convention,  to the benefit  of  the existing  Lomé  Members 
and  South  Africa  itself". 

The  Community  proposal  of  June  1995  followed  the  launching  of  a  "package  of  initial 
measures  for  South  Africa", 
in  April  1994,  and  the  conclusion  of  a  "simplified  co 
operation  agreement"  between  the Community  and  South  Africa  in October  1994. 

its 
The  proposal  was  completed  on  25  March  1996,  when  Council  approved 
complementary  negotiation  directives  for  the trade part of  the proposed  bilateral  agreement 
between  the  EU  and  South  Africa.  These  directives  summarized  the  details  of  the 
Community's  bilateral  trade  proposal  to  South  Africa,  which  would  entail  a  Free  Trade 
Area between  the two. 

Attached  draft  Council  Common  Position  deals  with  the  first  track  of  the  Community 
proposal:  the  Protocol  to the  Lomé Convention. 

Qualified  membership 

The  negotiating  directives  of  19 June  1995 state expressly  that  "South  Africa's  membership 
of  Lomé  will  be  qualified."  ft  says  that  "a  list  of  Chapters  and  Articles  of  the  Lomé 
Convention  that  shall,  for  the  duration  of  the  present  Convention,  not  be  applicable  to 
South  Africa  will  be  identified". 

Council  further  decided  that  whereas  South  Africa  would  be  invited  to formally  participate 
in  the  institutions  of  the  Convention  as  well  as  in  all  areas  of  ACP-EC  co-operation,  it 
would  not be eligible for  trade concessions and  financial  instruments  under  the  Convention. 

h  was  agreed  that  with  the  exception  of  assistance  referred  to  under  Article  255  of  the 
Convention  (refugee  assistance),  all  references  in  the  Convention  to  the  use  of  financial 
resources  under  the  Convention  shall  not apply  to South  Africa.  Other  sources,  outside  the 
Convention,  would  remain  available  for  financial  assistance  to South  Africa. 

There  was  also  consensus  that  trade  and  trade  co-operation  would  be  more  appropriately 
accommodated  in the context of the bilateral  EU/South  Africa  relationship. 

Council  attached  a  table  to  the  negotiating  directives,  which  gave  a  detailed  overview  of 
those  articles  of  the  Lomé  Convention  that  would  and  those  that  would  not  apply  to  South 
Africa. 

Comprehensive  package 

The  negotiating  directives  of  19 June  1995 did  not  raise  the  issue of  "linkage"  between  the 
two  tracks  of  the  Community  proposal.  Whereas  it was  assumed  that  both  issues  would  be 
negotiated  in parallel,  the  directives  said  explicitly  that  "the  negotiations  will  take  place  in 
a  dual  institutional  setting",  and  that  "the  Protocol  defining  the  terms  and  conditions  of 
South  African  accession  to the  Lomé Convention  will be  separately  discussed  and  approved 
in the appropriate  form". 

It  was  only  on  the  occasion  of  the  adoption  of  the  complementary  (trade)  negotiating 
directives  of  March  1996  that  a  Declaration  by  Council  established  a  link  between  the 
different  issues  under  negotiation.  In a statement  attached  to these directives  Council  made 
specific  reference  to  sectoral  agreements  covering  co-operation  on  fishing,  wines  and 
spirits  and  science  and  technology.  Council  considered  that  these  three  agreements,  "while 
formally  separate",  "must  be  negotiated  in parallel  and  concluded  in  principle  at  the  same 
time  as  the  Trade  and  Co-operation  Agreement  and  the  Protocol  on  accession  to  the  Lomé 
Convention". 

Whilst  defending  a  truly  comprehensive  approach  and  actively  pursuing  parallel  progress 
on  all  issues  and  tracks  under  negotiation  with  South  Africa,  the  Commission  had  not 
associated  itself  to  the  Council  declaration  on  linkages.  The  Commission  felt  it  was  not 
realistic  to expect  that all  negotiations  could be concluded  at the same time. 

One  element  of  the  package,  the  Science  and  Technology  agreement,  has  already  been 
approved  by Council  in December  1996. 

Facilitating  clause 

In  November  1995  the  ACP/EC  Council  of  Ministers  approved  and  signed  the  revised 
Lomé  IV  Convention.  This  Convention  contains  a  clause  (Article  364)  which  pre-empts 
South  Africa  accession,  and  aims  to  facilitate  this  process  by  avoiding  the  need  for 
ratification  of  such  a  decision.  Article  364  says  that  "If  before  the  entry  into  force  o\  the 
provisions  amending  this  Convention  (...),  the  negotiations  with  South  Africa  lead  to  an 
agreement  on  its accession  to this  Convention,  then  (...)  the  Council  of  Ministers  shall  act 
on  the outcome  of  such  negotiations  and  take a decision  on  the  terms  and  conditions  of  the 
accession  (...).  In  case  of  a  positive  decision,  South  Africa  shall  be  added  to  the  States 
signatory  to  this  Convention  without  further  ratification  needed  by  the  Signatories  of  this 
Convention". 

It  is expected  that  the revised  Lomé IV Convention  will enter  into force  well before  the end 
of  1997.  This  implies  that  the  ACP/EC  Council  of  Ministers  of  24/25  April  1997  in 
Luxembourg  will  probably  provide  the  last  opportunity  to  make  use  of  the  facilitating 
provisions  of  Article  364.  If  this  Council  would  not  be  able  to  approve  the  Protocol  on 
South  Africa's  accession  to the Convention,  there  is a real  risk  that such a decision  needs to 
be separately  ratified  by the Signatories of the  Convention. 

This  legal  reality  puts considerable  time constraints on the approval  procedure. 

The outcome of the technical  discussions 

Technical  discussions  between  the  Commission  and  representatives  of  the  government  ot 
the  Republic  of  South  Africa  started  in  July  1995.  Work  on  the  Lomé  Protocol  was 
finalized  on  24  February  1997,  when  South  African  negotiators  informed  the  Commission 
that  they  accepted  the draft  Protocol. 

During  the  last stages of  the discussions  between  Commission  and  South  Africa  on  the  draft 
Protocol  eight  issues  remained  controversial.  On  six  of  these  subjects  South  Africa 
unconditionally  accepted  the  initial  Community  proposals: 

Trade  Exclusion  Clause  (Art.  3  of  Protocol).  South  Africa  has  accepted 
its 
Membership  to  the  Convention  does  not give  the  country  access  to  the  Trade  Co-operation 
provisions  of  Lomé. 

that 

Human  Rights  and  Non-Execution  Clause  (Art.  5 /  366a  of  Convention):  South  Africa  has 
withdrawn  its  initial  request  to add  a unilateral  declaration  to these Articles. 

Toxic  Waste  (Art.  39).  South  Africa  has  fully  accepted  the  disciplines  in this  area  that  are 
also  imposed  on other  ACP countries. 

Fisheries  Co-operation  (Art.  64 and  68).  By accepting  these articles,  South  Africa  confirms 
its willingness  to negotiate a fisheries  agreement  with the EU. 

Maritime  Transport  (Art.  126).  South  Africa  accepts,  and  thereby  subscribes  to  the 
principle of  unrestricted  access on a commercial  basis. 

ACP  preference  for  EDF  tenders  (Art.303).  South  Africa  accepts  that  this  special 
provision  will  not  be  applicable.  Natural  and  legal  persons  of  South  Africa  and  of  EU 
countries  will  compete  for  EDF contract on exactly  the same terms. 

On  the  two  remaining  controversial  subjects,  cumulation  of  origin  and  access  to  7th  EDF 
tenders,  "procedural  understanding"  was  reached  between  the  Commission  and  South 
Africa.  It  was  agreed  that  whilst  further  discussion  and  clarification  on  these  issues  is 
desirable,  there  is no strict  legal  need  to do so prior  to the conclusion  of the  Protocol. 

Issues for  further clarification  outside the context  of the Protocol 

Cumulation  of  Origin  (Art.  6(5)  of  Protocol  1 and  annex  86).  South  Africa  has  accepted 
the  fact  that  its  objections  against  the  use  of  the  words  "ad  hoc"  in  annex  86,  cannot  and 
will  not be solved  in the context  of  the  Protocol  of accession.  In recognition  of  this  reality, 
South  Africa  has  introduced  a  unilateral  declaration  to the  Protocol  in  which  it calls  on  the 
Contracting  Parties  to  "clarify  at  the  earliest  time  the  conditions  under  which  inputs 
originating  in South  Africa  shall  be considered  eligible  to the Cumulation  procedure  set  out 
in Article  6(5) of  Protocol  1." 

Access  to  tenders  under  the  7th  EDF  (Art.  294).  South  Africa  expressed  its  wish  that 
Article  294,  which  will  apply  to  it,  should  be  interpreted  as  referring  not  only  to  EDF  8, 
but also to  EDF 7.  Indeed,  since  Article 294 refers  to  "the Fund"  in general,  without  being 
more  specific,  Art.  294  applies  to  both  funds.  However,  the  Commission  informed  South 
Africa  that  allowing  South  Africa's  access  to  cover  7th  EDF  contracts  would  have  to  be 
agreed  by  Council,  because  South  Africa  would  then  be  better  treated  than  the  three  new 
EU  Member  States.  Depending  on  whether  Council  will  accept  or  reject  South  Africa's 
eligibility  to  EDF  7  contracts,  the  South  African  government  will  decide  at  a  later  stage 
whether  it will  add  a unilateral  declaration  to the  Protocol. 

Conclusion 

The  Commission  is  satisfied  with  the  outcome  of  the  negotiations  with  the  Republic  of 
South  Africa  on  the  latter's  accession  to  the  revised  Lomé  IV  Convention.  It considers  the 
attached  draft  Protocol  fully  in  line  with  the  negotiating  directives  that  Council  had 
approved  on  19 June  1995.  The  Commission  is confident  that  South  Africa's  accession  to 
the Convention,  under  the  terms  and  conditions  as  laid  down  in the draft  Protocol,  will  not 
only  benefit  South  Africa  itself,  but also the ACP Group as a whole. 

Whilst  regretting  that  it  had  not  been  possible  to  make  even  more  progress  on  the  other, 
bilateral,  track  of  the planned  framework  of co-operation  the  Commission  has  no  reason  to 
doubt  that  that  the  eventual  outcome  of  the  negotiation  process  will  be  comprehensive  and 
will  address  all  issues and  sectors of  mutual  interest. 

The  Commission  furthermore  considers  that  an  early  accession  of  South  Africa  to  the 
revised  Lomé Convention  would  constitute an  important  political  signal  by  the  Community 
to  both  South  Africa,  and  the  current  ACP  group  of  countries,  and  may  have  a  positive 
effect  on  both  the  ongoing  bilateral  negotiations  with  South  Africa  as  well  as  on  the  wider 
discussions  on  the  future  of  Lomé. 

In  the  light  of  the  above,  the  Commission  recommends  that  the  Council  approves  the 
Protocol  in  Annex  and  takes  advantage  of  the  facilitating  clause  of  Article  364  of  the 
revised  Lomé  IV Convention,  which  would  allow  South  Africa  to accede  to the  Convention 
at  the  moment of  its entering  into  force. 

COUNCIL COMMON  POSITION 

of 

concerning the approval of the Protocol  governing 
the accession of the Republic of  South  Africa 
to the Fourth  ACP-EC  Convention 
as revised by the Agreement signed in 
Mauritius on 4 November  1995 

THE COUNCIL  OF THE EUROPEAN  UNION. 

Having regard to the Treaty  establishing the European Community,  and in particular Article 23 87 
in conjunction  with the second sentence of Article 228(2) and the second subparagraph  of 
paragraph 3 thereof; 

Having regard to the proposal  from the Commission ; 

Having regard to the assent of the European Parliament 

Whereas  South  Africa  requested to establish the closest possible relationship with the Lomé 
Convention  in a letter dated 17 November  1.994  sent to the Co-Presidents of the ACP-EC  Council 
of Ministers; 

Whereas the EU-Council of Ministers has in its decision of  19 June  1995 invited  South  Africa  to 
accede to the Lomé Convention  on terms and conditions to be laid down in a Protocol  to the 
Convention . 

HAS DECIDED  AS FOLLOWS : 

Article 1 

The  Protocol  governing  the  accession  of  the  Republic  of  South  Africa  to  the  Fourth  ACP-EC 
Convention  as  revised  by  the  Agreement  signed  in  Mauritius  on  4  November  1995  is  hereby 
approved  on behalf of the Community. 

The text of the Protocol  is attached to this decision. 

Article 2 

The  President  of  the  Council  shall,  on  behalf  of  the  Community  and  the  Member  States,  notify 
this  approval  to  the  President  of  the  ACP  Council,  and  request  the  ACP-EC  Council  to  take  a 
decision  on  the terms  and conditions  contained in the Protocol  at its meeting  of  24  April  1997 in 
Luxembourg. 

Done at Brussels 

For the Council 
The President 

PROTOCOL N° 11 

governing the accession of the 
Republic of South Africa to the 
Fourth ACP-EC Convention of Lomé 
as revised by the Agreement 
signed in 
Mauritius 
on 4 November 1995 

Article 1 

Qualified  Accession 

The Contracting  Parties to the Convention agree that the accession of South Africa to the Convention  will be 
subject  to certain qualifications  as set out in this Protocol. 

Article 2 

Financial  Resources 

1. 

2. 

3. 

With  the  exception  of assistance  referred  to  under Article  255 of the  Convention,  all  references  in 
the  Convention  to  the  use  of  financial  resources  under  the  Convention  shall  not  apply  to  South 
Africa. 

Assistance  under  Article  255 may  be granted  in the  event  of  a significant  influx  of  refugees  from 
neighbouring ACP states into South  Africa. 

All other assistance which may be made available by the Community to South Africa  will  be drawn 
from  sources outside the financial resources of the Convention. 

Article 3 

Trade Cooperation 

All  references  in the Convention  to Trade  Cooperation  and to the use of Trade Cooperation  shall  not  apply 
to  South  Africa.  This  is without  prejudice  to  the provisions  on  cumulation  of  origin  set  out  in  Art.  6.5  of 
Protocol N°  1  and Annex LXXXVI to the Convention. 

Article 4 

Applicability 

The  table  hereunder  sets  out  those  articles  of the  Convention  which  shall  apply  to  South  Africa  and  those 
which shall not apply. 

> 

I 

I 

J 

J 

- 

50 

1 

Revised  Lomé  IV  Convention 

= 

Part/Chaptcr/Arliclc 

Applicability  to 
South  Africa 

Not 

^l 

[ 
I 

Applicable  Applicable 

PART ONE  : GENERAL PROVISIONS OF ACP-EC 
Ch  1 : Objectives  and Principles of cooperation (Arts 1-12a) 

Ch 2 : Objectives  and guidelines of the Convention in the main areas of 

1-12a 

13-19 

cooperation  (Arts 13-19) 

Ch 3 : Widening participation  in cooperation  activities (Arts 20-22 deleted)  1 

Ch 4 : Principles governing the instruments of cooperation (Arts 23-28) 

23, 26-27 

24-25, 28 

I Ch 5 : Institutions (Arts 29-32) 

Title I: 

Environment  (Arts 33-41) 

PART TWO  : THE AREAS OF ACP-EC  COOPERATION 

29-32 

33-41 

Title II  :  Agricultural  cooperation,  food  security and rural development 

42-49 

(Arts 42-57) 

Title III:  Fisheries (Arts 58-68) 

I 

I 

51-57 

58-68 

Title IV :  Cooperation on commodities  (Arts 69-76) 

I 

69-76 

- 

I 

Title V : 

Industrial development,  manufacturing  and processing 
(Arts 77-87; Art. 88 deleted; Arts 89-93; Arts 94-96 deleted; 

1 
1 

77-87 
89-93 

Arts 97-98) 

Title VI:  Mining development  (Arts 99-104) 

Title VII:  Energy development  (Arts 105-109) 

Title VIII  :  Enterprise development (Arts 110-113) 

Title IX 

Development of services (Arts 114-134) 

Title X: 

Trade development (Arts 135-138) 

Title XI :  Cultural  and social cooperation  (Arts 139-155) 

Title XII:  Regional  Cooperation (Arts 156-166) 

97-98 

99-104 

105-109 

110-113 

114-134 

135-138 

139-155 

156-166 

- 

- 

- 

| 

| 

I 

Î 

PART THREE  : The  Instruments  of ACP-EC  COOPERATION 

Title I : 

Trade Cooperation  (Arts 167-185) 

Title II  : 

Cooperation  in the Field  of  Commodities 

-  STABEX {Arts  186-212) 

-  SUGAR  (Art  213) 

-  SYSMIN  (Arts  214-219) 

Title  III  :  Development  Finance  Cooperation 

- General  provisions  (Arts  220-230) 

167-185 

186-212 

213 

214-219 

220-230 

- Financial  cooperation  (Arts  231-257) 

255-256 

231-254,257 

-  Investment  (Arts  258-274) 

- Technical  cooperation  (Arts  275-280) 

-  Implementation  procedures  (Arts  281-310) 

-  Management  and  executing  agents  (Arts  311-327) 

Title IV  : Least developed,  landlocked  and  island  ACP  States 

(Arts  328-337) 

PART  FOUR  : OPERATION  OF  THE  INSTITUTIONS 

-  The Council  of Ministers  (Art  338-345) 

- The Committee  of  Ambassadors  (Arts  346-347) 

-  Common  provisions  (Arts  348-349) 

- The Joint  Assembly  (Arts  350-351) 

- Other  provisions  (Arts  352-355) 

PART  FIVE  : FINAL  PROVISIONS 

(Arts  356-369) 

281-293 
303 

258-274 

275-280 

294-302 
304-310 

311-327 

328-337 

338-345 

346-347 

348-349 

350-351 

352-355 

356-369 

PROTOCOLS 

- Second Financial Protocol 

- Protocol N°  1 Definition  of the concept of "originating products" and 

methods of administrative co-operation 

- Protocol N° 2 Operating expenditure of Joint  Institutions 

- Protocol N° 3 Privileges and  immunities 

- Protocol N° 4 Safeguard  measures 

- Protocol N° 5 Bananas 

- Protocol N° 6 Rum 

- Protocol N°  7 Beef and veal 

- Protocol N° 8 Sugar 

- Protocol N° 9 ECSC 

- Protocol N° 10 Forest Resources 

Art 255 
resources 

Rest of 
Second 
Financial 
Protocol 

| 

Protocol 1 

Protocol 2 

Protocol 3 

Protocol 4 

Protocol 5 

Protocol 6 

Protocol 7 

Protocol 8 

Protocol 9 

Protocol  10 

X^ 

ANNEXES TO THE  PROTOCOL  OF ACCESSION 

Joint  Declaration  by  the  Community  and  its  Member  States,  the  ACP  States  and  South  Africa  on  the 
Joint  Declarations  annexed  to  the  Lomé  Convention 

Annex 1 

The  Community  and  its  Member  States,  the  ACP  States  and  South  Africa  agree  that  the  joint  declarations 
contained  in  the  annexes  to  the  Lomé  Convention  listed  below  are  also  relevant  to  South  Africa  : Annexes  I, 
II,  IV,  V,  VI,  VII,  VIII,  IX,  XII,  XIII,  XIV,  XV,  XVI,  XXII,  XXIII,  XXV,  XXVI,  XXXII,  L,  LII,  LIII,  LIV, 
LV,  LVI,  LVII,  LXVIII,  LXXIII,  LXXIX,  LXXX,  LXXXII,  LXXXIII,  LXXXIX  together  with  the  joint 
declarations  contained  in  the  following  annexes  to  the  Minutes  of  the  signing  of  the  fourth  ACP-EC 
Convention  : Annexes  I and  II. 

Community  Declaration  on  the  Community  Declarations  annexed  to  the  Lomé  Convention. 

The  Community  considers 
in  the  annexes  to  the  Lomé 
that  the  Community  Declarations  contained 
Convention  listed  below  are  also  relevant  to  South  Africa  :  Annexes  HI,  IIIA,  XVII A,  XIX,  LXIX,  LXX, 
LXXI,  LXXII 

Annex 2 

Declaration  by  South  Africa  on  the ACP  Declarations  annexed  to  the  Lomé  Convention 

South  Africa  hereby  associates  itself  with  the  ACP  declarations  contained  in  the  annexes  to  the  Lomé 
Convention  listed  below  : Annexes  XVIIB,  XVIII,  XXIV,  LI. 

Annex 3 

Declaration  by  South  Africa  on  Cumulation 

Annex  4 

South  Africa  wishes  to  reiterate  the  importance  of  economic  integration  between  ACP  states  ILS being  of  key 
relevance  in  promoting  their  development.  This  is  especially  tme  in  the  Southern  African  region  where  the 
Southern  African  Customs  Union  (SACU)  and  the  Southern  Africa  Development  Community  (SADC)  Trade 
Protocol  underline  attempts  to  promote  such  integration 

South  Africa,  furthermore,  wishes  to  draw  attention  to  the  fact  that  it  is now  listed  as  a  developing  country  by 
the  Development  Aid  Committee  of the  OECD. 

investors  and  other  economic 
With  a  view  to  reducing  the  element  of  uncertainty  which  might  affect 
operators,  thereby  also  negatively  affecting  the  aforementioned  economic  integration  and  its  accompanying 
stimulation  of development,  South  Africa  calls  upon  the  other  Contracting  Parties  to  clarify  at  the  earliest  time 
the  conditions  under  which  inputs  originating  in  South  Afriea  shall  be  considered  eligible  to  the  cumulation 
procedure  set  out  in  Article  6(5)  of  Protocol  I 

in 

ISSN 0254-1475 

COM(97)  107  final 

DOCUMENTS 

EN 

11 

Catalogue number  :  CB-CO-97-102-EN-C 

ISBN 92-78-16958-7 

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