Proposal for a Council Decision concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the results of the World Trade Organisation negotiations on financial services
Date: 1998-07-14
Institutions: European Commission
Subjects: World Trade Organisation, banking, liberalisation of the market, provision of services, trade agreement

31.8.98

EN

Official  Journal  of  the  European  Communities

C  271/1

II

(Preparatory  Acts)

COMMISSION

Proposal  for  a  Council  Decision  concerning  the  conclusion  on  behalf  of  the  European
Community,  as  regards  matters  within  its  competence,  of  the  results  of  the  World  Trade
Organisation  negotiations  on  financial  services

(98/C  271/01)

COM(98)  440  final  —  98/0239  (CNS)

(submitted  by  the  Commission  on  14  July  1998)

THE  COUNCIL  OF  THE  EUROPEAN  UNION,

Having  regard  to  the  Treaty  establishing  the  European
Community, and in particular Articles 54, 57, 63, 66 73b
to  73f,  99,  100,  100a  and  113,  in  conjunction  with  the
second  sentence  of  Article  228  (2)  and  the  first
subparagraph  of  Article  228  (3)  thereof,

Having  regard  to  the  proposal  from  the  Commission,

Having  regard 
Parliament,

to 

the  opinion  of 

the  European

Having regard to the opinion of the Economic and Social
Committee,

procedures,  the  final  schedule  of  commitments  of  the
European  Communities 
States
(GATS/SC/31/Suppl.4),  and  authorised  the  Commission
to  submit 
the  European
Community  and  its  Member  States,  to  the  WTO;

list,  on  behalf  of 

its  Member 

that 

and 

Whereas  on  the  same  date  the  Council  authorised  the
Commission  to  approve,  on  behalf  of  the  European
Community and its Member States, the final result of the
negotiations  as  set  out  in  the  in  the  Fifth  Protocol  to  the
GATS  (S/L/45),  the  Decision  adopting  that  Protocol
(S/L/44)  and  the  Decision  on  Commitments  in  Financial
Services (S/L/50);

Whereas  the  Marrakesh  Agreement  establishing  the
World  Trade  Organisation  and  its  related  agreements  as
well  as  the  Ministerial  Decisions  and  Declarations  and
the Understanding on Commitments in Financial Services
were  approved  by  a  Council  Decision  of  22  December
1994;

Whereas  the  competence  of  the  Community  to  conclude
international  agreements  derives  not  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  the  overall  commitments  on  financial  services
negotiated by the Commission, on behalf of the European
Community  and 
its  Member  States,  constitute  a
satisfactory  and  balanced  outcome  of  the  negotiations;

Whereas  on  12  December  1997  the  Council  approved,
subject to definitive approval after completion of internal

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;

C  271/2

EN

Official  Journal  of  the  European  Communities

31.8.98

Whereas  some  commitments  on  financial  services  fall
within  the  competence  of  the  Community  under  Articles
113  and  73c  of  the  Treaty;  whereas,  furthermore,  other
commitments  on  financial  services  affect  Community
rules adopted on the basis of Articles 54, 57, 63, 66, 99,
100 and 100a and may therefore only be entered into by
the  Community  alone;

Whereas,  in  particular,  the  use  of  Article  100  of  the
Treaty  as  a  legal  base  for  this  Decision  is  justified  to  the
extent that the aforementioned commitments on financial
services  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
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,  which  are  based  on  Article  100  of  the  Treaty;

Whereas,  with  regard  to  capital  movement  commitments
contained  in  the  list  of  specific  commitments  of  the
Community and of the Member States and in the present
state of Community law, there is a general competence of
the Community; whereas Member States however remain
competent  to  act  within  the  limits  laid  down  by  the
provisions  of  Article  73c  of  the  Treaty;

Whereas,  by  their  nature,  the  Agreement  establishing  the
World  Trade  Organisation  and  the  Protocols  to  the
General Agreement on Trade in Services, are not likely to

be  directly  invoked  before  the  Community  or  Member
States’  courts,

HAS  DECIDED  AS  FOLLOWS:

Sole  Article

1. The  Fifth  Protocol  to  the  General  Agreement  on
Trade  in  Services  concerning  financial  services  (S/L/45)  is
hereby  approved  on  behalf  of  the  European  Community
with  regard  to  that  portion  of  it  which  falls  within  the
competence  of  the  European  Community.

2. The  text  of  the  Fifth  Protocol,  together  with  the
schedule  of  specific  commitments  (GATS/SC/31/Suppl.4)
and  the  list  of  the  exemptions  from  Article  II  of  the
General Agreement on Trade in Services (GATS/EL/31) of
the  Community  and  the  Member  States  concerning
financial services are attached to this Decision, as are also
the  following  Decisions:

—  the Decision of the Committee on Trade on Financial
Services  adopting  the  Fifth  Protocol  to  the  General
Agreement  on  Trade  in  Services  (S/L/44),

—  the  Decision  of  the  Council  for  Trade  in  Services  of
in  Financial

December  1997  on  Commitments 
Services (S/L/50),

3. The  President  of  the  Council  is  hereby  authorised  to
designate  the  person  empowered  to  sign  the  Fifth
Protocol  to  the  General  Agreement  on  Trade  in  Services
in order to bind the European Community with regard to
that  portion  of 
its
the  Protocol 
competence.

falling  within