Proposal for a Council Decision concerning the conclusion of the Agreement on maritime transport between the European Community and its Member States, on the one hand, and the People's Republic of China on the other hand
Date: 2002-02-22
Institutions: European Commission
Subjects: China, bilateral agreement, carriage of goods, freedom to provide services, maritime transport

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Official Journal of the European Communities

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Proposal for a Council Decision concerning the conclusion of the Agreement on maritime
transport between the European Community and its Member States, on the one hand, and the
People's Republic of China on the other hand

(2002/C 181 E/08)

COM(2002) 97 final — 2002/0048(CNS)

(Submitted by the Commission on 22 February 2002)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 80(2)
in
conjunction with the first sentence of the first subparagraph
of Article 300(2) and the first subparagraph of Article 300(3)
thereof,

thereof,

People's Republic of China, on the other hand,
approved on behalf of the Community.

is hereby

The text of the Agreement is attached to this Decision.

Article 2

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

The President of the Council is hereby authorised to designate
the persons empowered to sign the Agreement in order to
express the consent of the Community to be bound thereby.

the European Community should approve

Whereas
the
Agreement on maritime transport between the European
Community and its Member States on the one hand, and the
People's Republic of China on the other hand,

HAS DECIDED AS FOLLOWS:

Article 3

The President of
Community, give the notification provided for
15(2) of the Agreement.

the Council

shall, on behalf of

the
in Article

Article 1

Article 4

The Agreement on maritime transport between the European
Community and its Member States, on the one hand, and the

This Decision shall be published in the Official Journal of the
European Communities.

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DRAFT AGREEMENT ON MARITIME TRANSPORT BETWEEN THE EUROPEAN COMMUNITY AND ITS
MEMBER STATES, OF THE ONE PART, AND THE PEOPLE'S REPUBLIC OF CHINA, OF THE OTHER PART

ANNEX

THE KINGDOM OF BELGIUM,

THE KINGDOM OF DENMARK,

THE FEDERAL REPUBLIC OF GERMANY,

THE HELLENIC REPUBLIC,

THE KINGDOM OF SPAIN,

THE FRENCH REPUBLIC,

IRELAND,

THE ITALIAN REPUBLIC,

THE GRAND DUCHY OF LUXEMBOURG,

THE KINGDOM OF THE NETHERLANDS,

THE REPUBLIC OF AUSTRIA,

THE PORTUGUESE REPUBLIC,

THE REPUBLIC OF FINLAND,

THE KINGDOM OF SWEDEN,

THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND,

Parties to the Treaty establishing the European Community and the Treaty on European Union, hereinafter referred to as
the ‘European Community Member States’, and

THE EUROPEAN COMMUNITY,

of the one part, and

THE PEOPLE'S REPUBLIC OF CHINA

hereinafter referred to as ‘China’,

of the other part,

TAKING INTO ACCOUNT the Trade and Economic Co-operation Agreement between the European Economic
Community and the People's Republic of China of May 1985;

TAKING INTO ACCOUNT the importance of the maritime relations existing between the European Community and its
Member States and the People's Republic of China;

BELIEVING that the cooperation in the international maritime field between the Contracting Parties will be beneficial for
the development of the trade and economic relations between the People's Republic of China and the European
Community and its Member States;

WILLING to further strengthen and consolidate the relations, on the basis of equality and mutual benefit, in the field of
international maritime transport;

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RECOGNISING the importance of maritime transport services and wishing to promote even further multimodal
transport involving a sea leg in order to increase efficiencies in the transport chain;

RECOGNISING the importance of further developing a flexible and market-oriented approach and the benefits to
operators of both parties to control and operate their own international cargo transport services in the context of
an efficient international maritime transport system;

TAKING INTO ACCOUNT the existing bilateral maritime agreements between the European Community Member States
and the People's Republic of China;

SUPPORTING multilateral negotiations on maritime transport services in the World Trade Organisation;

HAVE DECIDED to conclude this Agreement and to this end have designated their plenipotentiaries:

THE KINGDOM OF BELGIUM,

THE KINGDOM OF DENMARK,

THE FEDERAL REPUBLIC OF GERMANY,

THE HELLENIC REPUBLIC,

THE KINGDOM OF SPAIN,

THE FRENCH REPUBLIC,

IRELAND,

THE ITALIAN REPUBLIC,

THE GRAND DUCHY OF LUXEMBOURG,

THE KINGDOM OF THE NETHERLANDS,

THE REPUBLIC OF AUSTRIA,

THE PORTUGUESE REPUBLIC,

THE REPUBLIC OF FINLAND,

THE KINGDOM OF SWEDEN,

THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND,

Parties to the Treaty establishing the European Community and the Treaty on European Union, hereinafter referred to as
the ‘European Community Member States’, and

THE EUROPEAN COMMUNITY,

of the one part, and

THE PEOPLE'S REPUBLIC OF CHINA

WHO, having exchanged their full powers, found in good and due form,

HAVE AGREED AS FOLLOWS:

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Article 1

Aim

This Agreement
is aimed to improve the conditions under
which maritime cargo transport operations are carried out to
and from China, to and from the European Community, as well
as to and from the European Community and China on the
one hand and third countries on the other, for the benefit of
economic operators. It is based on the principles of freedom to
provide maritime transport services, free access to cargoes and
cross trades, unrestricted access to and non-discriminatory
treatment in the use of ports and auxiliary services as well as
regarding commercial presence. It covers all aspects of door-to
door-services.

Article 2

Scope

This Agreement applies to the international maritime
1.
cargo transport and logistic services,
including multimodal
operations involving a sea leg, between the ports of China
and of the Member States of the European Community as
well as to the international maritime cargo transport between
the ports of the Member States of the European Community. It
also applies to cross trades and to the movement of equipment
such as empty containers — not being carried as cargo against
payment — between ports of China or between ports of a
Member State of the European Community.

If vessels of one Contracting Party sail from one port of the
other Contracting Party to another or from one port of a
Member State of
the European Community to another to
load cargo for foreign countries or discharge cargo from
abroad,
the international
maritime transport.

it shall be regarded as a part of

This Agreement shall not apply to domestic transport purely
between the ports of China or between the ports of any
particular Member State of the European Community.

2.
This Agreement shall not affect the application of the
bilateral maritime agreements concluded between China and
the Member States of
the European Community for issues
falling outside the scope of this Agreement.

This Agreement shall not affect the right of vessels of
3.
third parties to engage in cargo and passenger
transport
between the ports of the Contracting Parties or between the
ports of either Contracting Party and a third party.

Article 3

Definitions

cargo,

and the

and warehousing services,

related cargo handling,
transport of
storage
clearance
services, container station and depot services, port and
inland located,
and freight
forwarding services;

shipping agency services

customs

(b) ‘Multimodal transport operations’ is the carriage of goods
using more than one mode of transport including a sea-leg
under a single document;

(c)

‘Shipping agency services’ means activities consisting in
representing, within a given geographic area, as an agent,
the business interests of one or more shipping lines or
shipping companies, for the following purposes:

— marketing and sales of maritime transport and related
services, from quotation to invoicing, and issuance of
bills of lading on behalf of the companies, contracting
of the necessary related services, preparation of docu-
mentation, and provision of business information;

— acting on behalf of the companies organising the call of

the ship or taking over cargoes when required;

(d)

‘Freight forwarding services’ means the activity consisting
of organising and monitoring shipment operations on
behalf of shippers,
through contracting related services,
preparation of documentation and provision of business
information;

(e)

‘Shipping company’ means a company which meets the
following conditions:

1. to be constituted in accordance with the public or
private laws of China, or the European Community or
a Member State of the European Community,

2. to have its registered office or central administration or
principal place of business in China or the European
Community respectively,

3. to engage in international shipping service with its

owned or operated vessels.

Shipping companies established outside the European
Community or China and controlled by nationals of a
Member State of the European Community or of China
respectively, shall also be beneficiaries of the provisions
if their vessels are registered in that
of this Agreement,
Member State or in China in accordance with their legis-
lation;

For the purpose of this Agreement:

(f)

‘Subsidiary’ means a company owned by a shipping
company and having legal personality;

(a)

‘International maritime cargo transport and logistic services’
international maritime
cover the supply of services of

(g)

‘Branch office’ means a place of business owned by a
shipping company and not having legal personality;

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(h) ‘Representative office’ means a representative office of a
shipping company of one Contracting Party established in
the other Contracting Party;

international cargo between the ports of China or between the
ports of a Member State of the European Community.

(i)

Party under

‘Vessel’ means any merchant ship registered in accordance
with the laws of China, or the European Community or its
Member States in the vessel registration office of either
Contracting
that
Contracting Party and engaged in international maritime
transport,
including vessels flying the flag of a third
country but owned or operated by a shipping company
of China or a Member State of the European Community.
However, this term does not include warships and any
other non-commercial ships.

the national

flag of

Article 4

Supply of services

to

shall

Party

continue

Each Contracting

1.
grant
non-discriminatory treatment to vessels flying the flag of the
other party or operated by nationals or companies of the other
Party, as compared to the treatment accorded to its own
vessels, with regard to access to ports, the use of infrastructure
and auxiliary maritime services of those ports, as well as related
fees and charges, customs formalities and assignment of berths
and facilities for loading and unloading.

2.
The Contracting Parties undertake to apply effectively the
principle of unrestricted access to the international maritime
market and traffic on a non-discriminatory and commercial
basis.

Article 5

Commercial presence

for

the

the provision of

shipping companies of

In respect of activities
international
maritime cargo transport and logistic services, including door-
to-door multimodal operations, each Contracting Party shall
to
permit
establish wholly-owned
subsidiaries,
branches or representative offices and, as regards subsidiaries
and branches to engage in economic activities, in accordance
with its laws and regulations. Such activities include, but are
not limited to:

the other Party,

jointly-invested

or

1. cargo soliciting and booking of space;

2. making, confirming, handling and issuing of the bill of
lading, including the commonly accepted through bill of
lading in the international maritime transport; preparation
of documentation concerning transport documents and
customs documents;

3. fixing, collecting and remitting freight and other charges
incurred on the basis of the service contracts or tariff rates;

4. negotiating and signing service contracts;

5. signing contracts for trucking, railway transport, cargo

dealing and other related auxiliary services;

In applying the principles of paragraphs 1 and 2, the

3.
Contracting Parties shall:

6. quoting and publishing tariff rates;

(a) not introduce cargo sharing clauses in future agreements
with third countries concerning maritime transport services
and terminate such provisions in the case they exist in
previous bilateral agreements within a reasonable period
of time;

(b) abolish, upon entry into force of

this Agreement, all
unilateral administrative,
technical, or other measures,
which could constitute an indirect restriction and have
discriminatory effects on the free supply of services in
international maritime transport;

(c) abstain from implementing on entry into force of

this
legislative
Agreement
measures which could have the effect of discriminating
against nationals or companies of the other Party in the
supply of services in international maritime transport.

administrative,

technical

or

4.
One Contracting Party shall allow shipping companies of
the other Contracting Party to have access to and use of, on a
non-discriminatory basis and on agreed terms between the
companies concerned,
feeder services provided by shipping
companies registered in the former Contracting Party for the

7. engaging in marketing activities related to their service;

8. owning the
activities;

equipment necessary for

the

economic

9. provision of business information by any means, including
computerised information systems and electronic data
interchange (subject to any non-discriminatory restrictions
concerning telecommunications);

10. setting up joint ventures with any locally established
shipping agency to engage in agency related businesses,
such as organising the call of
taking
delivery of cargoes for shipment.

the vessels or

Article 6

Transparency

1.
Each Contracting Party shall, after prior consultation and
appropriate pre-notice, publish promptly all relevant measures
of general application, which pertain to or affect the operation
of this Agreement.

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2. Where publication as referred to in paragraph 1 is not
practicable, such information shall be made otherwise publicly
available.

3.
Each Contracting Party shall respond promptly to all
requests by the other Party for specific information on any
of its measures of general application within the meaning of
paragraph 1.

Article 7

Domestic regulation

1.
The Contracting Parties shall ensure that all measures of
general application affecting trade in international maritime
transport services are administered in a reasonable, objective
and impartial manner.

time

after

required,

In those cases where authorisation is

2.
the
competent authorities of a Contracting Party shall, within a
reasonable period of
an
application considered complete under domestic laws and regu-
lations,
inform the applicant of the decision concerning the
application. At the request of the applicant, the competent
authorities of a Contracting Party shall provide, without
the
information concerning the
undue delay,
application.

submission of

status of

the

3.
To ensure that measures relating to technical standards
and licensing requirements and procedures do not constitute
unnecessary barriers to trade, requirements shall be based on
objective, non-discriminatory, pre-established and transparent
criteria, such as the ability to supply the service; and in the
case of licensing procedures, not in themselves be a restriction
on or a barrier to the supply of the service.

Article 8

Key personnel

The wholly-owned or jointly-invested subsidiaries, branches or
representative offices of
the shipping companies of one
Contracting Party established in the other Contracting Party
shall be entitled to employ key personnel, in accordance with
the legislation in force in the host country, irrespective of their
nationality.
the
acquisition of work permits and visas for foreign employees.

Each Contracting

facilitate

Party

shall

host country. The balance after the payment of the local fees
by the abovementioned shipping companies,
subsidiaries,
representative offices may be freely remitted
branches or
abroad at
the bank on the date of
remittance.

the exchange rate of

Article 10

Maritime cooperation

The Contracting Parties shall, for the purpose of promoting the
the Contracting
development of
the maritime industry of
Parties,
shipping
companies, ports, relevant research institutions, universities
including in, but not limited to,
and colleges to co-operate,
the following fields:

authorities,

competent

encourage

their

1. to exchange views

activities
framework of international maritime organisations;

related to their

in the

2. to formulate and perfect the legislation relating to maritime

transport and market administration;

3. to promote efficient transport service for international sea
trade by the effective exploitation of the ports and fleets of
the Contracting Parties;

4. to guarantee
pollution;

shipping safety and to prevent marine

5. to promote maritime education and training, especially the

training of seafarers;

6. to exchange personnel, scientific information and tech-

nology;

7. to enhance their efforts to combat piracy and terrorism.

Article 11

Consultations and settlement of disputes

The Contracting

Parties

shall

to ensure the proper

establish appropriate
the

implementation of

1.
procedures
Agreement.

Article 9

Payments and capital movements

Revenues of nationals or companies of one Contracting
1.
Party derived from international maritime
transport and
multimodal operations in the other Contracting Party may be
settled in freely convertible currencies.

Should any dispute between the Contracting Parties arise
2.
from the interpretation or application of this Agreement, the
competent authorities of the Contracting Parties shall seek to
resolve the dispute through friendly consultation. In the event
that no agreement is reached, it shall be settled through the
diplomatic channel.

Article 12

Amendment

The revenues and expenses of the economic activities of
2.
the subsidiaries, branches and representative offices of
the
shipping companies of a Contracting Party established in the
other Contracting Party may be settled in the currency of the

This Agreement may be amended by a written agreement
between the Contracting Parties and the amendment will
come into force in accordance with the procedures specified
in paragraph 2 of Article 15 of this Agreement.

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Article 13

Territorial application

This Agreement will be approved by the Contracting

2.
Parties in accordance with their own procedures.

This Agreement shall apply, on the one hand, to the territories
in which the Treaty establishing the European Community is
applied and under the conditions laid down in that Treaty and,
on the other hand, to the territory of China.

This Agreement shall enter into force on the first day of the
second month following the date on which the Contracting
Parties notify each other that the procedures referred to in
the first paragraph have been completed.

Article 14

Authentic text

This Agreement is drawn up in duplicate in the Danish, Dutch,
English, Finnish, French, German, Greek,
Italian, Portuguese,
Spanish, Swedish and Chinese languages, each of these texts
being equally authentic.

Article 15

Duration and entry into force

1.
The Agreement is concluded for a period of five years. It
shall be tacitly renewed on a yearly basis unless one of the
Contracting Parties denounces it in writing six months before
the date of expiry.

If this Agreement is less favorable on certain issues than
3.
existing bilateral agreements between individual European
Community Member States and China,
the more favorable
provisions shall prevail without prejudice to Community obli-
gations and taking into account the Treaty. The provisions of
this Agreement replace those of previous bilateral agreements
concluded between European Community Member States and
China, if the latter provisions are either inconsistent with the
former, save for the situation referred to in the preceding
sentence, or identical to them. Provisions of existing bilateral
agreements not covered by this Agreement shall continue to
apply.

IN WITNESS WHEREOF the undersigned Plenipotentiaries have
signed this Agreement.