Proposal for a Council Decision a Community position within the EU-South Africa Cooperation Council on the amendment of Annexes IV and VI to the Agreement on Trade, Development and Cooperation between the European Community and its Member States, of the one part, and the Republic of South Africa, of the other part (TDCA), regarding certain agricultural products
Date: 2007-07-25
Institutions: European Commission
Subjects: South Africa, abolition of customs duties, agricultural product, revision of an agreement, tariff agreement, trade agreement (EU)

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 25.7.2007 
COM(2007) 444 final 

2007/0160 (ACC) 

Proposal for a 

COUNCIL DECISION 

a Community position within the EU-South Africa Cooperation Council on the 
amendment of Annexes IV and VI to the Agreement on Trade, Development and 
Cooperation between the European Community and its Member States, of the one part, 
and the Republic of South Africa, of the other part (TDCA),  
regarding certain agricultural products 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

Article  106(1)  of  the  Agreement  on  Trade,  Development  and  Cooperation  between  the 
European  Community  and  its  Member  States,  of  the  one  part,  and  the  Republic  of  South 
Africa,  of  the  other  part  ('TDCA')  empowers  the  Cooperation  Council  to  decide  on 
amendments  put  forward  by  any  Party.  According  to  Article 97(3)  of  the  TDCA,  the 
Cooperation Council has the power to take decisions in respect of all matters covered by the 
TDCA. 

Furthermore,  Article  17  of  the  EU-South  Africa  Agreement  on  Trade,  Development  and 
Cooperation  (TDCA)  provides  that  the  Community  shall  consider,  if  requested  by  South 
Africa,  proposals  relating  to  an  accelerated  timetable  for  tariff  elimination  for  imports  of 
agricultural products into South Africa, coupled with the elimination of all export refunds for 
exports to South Africa of the same products originating in the European Community. 

In  this  context  the  objective  of  the  proposed  Council  Decision  is  to  eliminate  the  duties  on 
Gouda, Cheddar and Processed cheese products for the Community’s preferential exports to 
South  Africa,  which  has  the  effect  of  eliminating  export  refunds  for  these  same  cheeses 
exported  to  South  Africa.  The  Community  export  refunds  for  the  remaining  TRQ  cheeses 
listed  in  Annex VI,  list 4,  "Cheese  and  curd",  other  than  the  three  cheeses,  would  be 
maintained at the levels applied in July 2004, without prejudice to monetary rate adjustments. 

It is also suggested to insert a footnote in the relevant Annex of the TDCA that clarifies the 
meaning of "gross weight" in the context of the global TRQs for certain canned fruit products. 
Following discussions at the Council ACP WG of 6 November 20021, an understanding has 
been reached with South Africa on the formulation of such a footnote.  

Since  certain  cheeses  have  been  erroneously  listed  in  list  8  of  Annex  IV  of  TDCA,  under 
"Cheese  and  curd"  for  which  tariff  concessions  are  not  applicable  as  these  products  are 
covered  by  the  protected  Community  denominations,  the  relevant  cheeses  are  therefore 
moved from list 8 to list 7 of Annex IV.  

•  General context 

This  Council  decision  follows  intensive  negotiations  at  the  technical  level,  following  a 
proposal of resolution of the outstanding agricultural issues between the EU and South Africa. 
The way forward was endorsed at the political level on 14 November 2006 in the context of 
the EU-South Africa Cooperation Council.  

The  Commission,  therefore,  proposes  that  the  Council  adopts  a  common  position  of  the 
Community on the position to be adopted by the Community within the Cooperation Council. 

1 

Information note (Council ref. no. 112/02 ADD 1 ACP of 5.11.2002) has been provided for the Council 
ACP Working Group on 6 November 2002 on canned fruit TRQ, and in the context of the discussions, 
Member  States  appeared  favourable  to  a  Community  position  regarding  this  issue  (ACP  Working 
Group no. 14234/02 of 27.11.2002). 

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This balanced agreement gives a positive signal for the economic operators involved, and also 
for the future of the EU/South Africa relations that are currently being re-shaped into a more 
ambitions partnership in the context of "EU-South Africa Strategic Partnership2". 

•  Existing provisions in the area of the proposal 

Council Regulation (EC) No 980/2005 
Council Decision 2004/441/EC 
Council Decision 2001/631/EC. 

•  Consistency with the other policies and objectives of the Union 

This  decision  is  part  of  the  broader  review  exercise,  which  both  sides  have  agreed  to 
undertake in accordance with Article 103 of the TDCA3. 

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

During the past years, several rounds of talks between the EU and South Africa took place at 
technical level to discuss the context and implications of this proposal. 

Furthermore, the Member States were informed (orally) on the outcome of the talks during the 
whole negotiation period, at the 133 Committee and the ACP Council working group as well 
as at the "Advisory group on Milk".  

•  Collection and use of expertise 

No need for external expertise. 

•  Impact Assessment 

Not applicable. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

This  Decision  takes  into  account  the  tariff  preferences  on  cheese  products  granted  to  the 
Community  by  South  Africa  as  well  as  the  elimination  of  the  export  refunds  on  the  same 
cheese products. It also clarifies the interpretation of gross weight ("g.w.") in the context of 
certain canned fruit TRQs and modifies list 8 of  Annex IV  of the TDCA by moving certain 
erroneously included cheeses from list 8 to list 7 of Annex IV. 

It is proposed that this amendment to the TDCA should enter into force as from 1 September 
2007. 

•  Legal basis 

Article 133 of the Treaty establishing the EC. 

2 
3 

COM(2006) 347 final of 28.6.2006. 
COM(2006) 348 final of 28.6.2006 and COM(2006) 561 final of 2.10.2006. 

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•  Subsidiarity 

The  proposal  falls  under  the  exclusive  competence  of  the  Community.  The  subsidiarity 
principle therefore does not apply. 

•  Proportionality 

The proposal complies with the proportionality principle. 

The  proposed  form  of  action  (Council  decision  on  a  position  to  be  adopted  within  the 
Cooperation  Council)  is  as  simple  as  possible  in  the  context  of  the  legal  framework 
established in the TDCA). 

•  Choice of instrument 

Proposed instruments: Council decision (only way to amend TDCA trade provisions). 

4. 

BUDGETARY IMPLICATIONS 

The budgetary impact for the Community budget will be negligible. 

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2007/0160 (ACC) 

Proposal for a 

COUNCIL DECISION 

a Community position within the EU-South Africa Cooperation Council on the 
amendment of Annexes IV and VI to the Agreement on Trade, Development and 
Cooperation between the European Community and its Member States, of the one part, 
and the Republic of South Africa, of the other part (TDCA),  
regarding certain agricultural products 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Article 133, in conjunction with the second subparagraph Article 300(2), thereof, 

Having regard to the proposal from the Commission, 

Whereas: 

(1) 

(2) 

(3) 

The  Agreement  on  Trade,  Development  and  Cooperation  between  the  European 
Community and its Member States, of the one part, and the Republic of South Africa, 
of  the  other  part4  (hereinafter  the  'Agreement')  has  been  approved  on  behalf  of  the 
Community by Decision 2004/441/EC of the Council of 26 April 20045. 

Article 97(3)  of  the  Agreement  provides  that  the  Cooperation  Council  shall  have  the 
power  to  take  decisions  in  respect  of  all  matters  covered  by  the  Agreement. 
Article 106(1) of the Agreement gives the Cooperation Council the power to decide on 
amendments put forward by any Party desirous of amending the Agreement. 

Article 3  of  Decision  2004/441/EC  specifies  that  the  position  to  be  taken  by  the 
Community  within  the  Cooperation  Council  shall  be  laid  down  by  the  Council  on  a 
proposal from the Commission, in accordance with the corresponding provisions of the 
Treaty 
the  Community.  Furthermore,  Article 10  of  Council 
Decision 2001/631/EC6,  adopting  the  rules  of  Procedure  of  the  Cooperation  Council, 
authorises the Cooperation Council to adopt decisions by means of a written procedure. 

establishing 

(4) 

The  meaning  of  "gross  weight"  in  the  context  of  the  tariff  lines  included  under  the 
heading  "Fruit,  nuts  and  other  edible  parts  of  plants"  in  Annex IV,  list 6  should  be 
clarified. 

4 
5 
6 

OJ L 311, 4.12.1999, p. 3. 
OJ L 127, 29.4.2004, p. 109. 
OJ L 221, 17.8.2001, p. 37. 

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(5) 

(6) 

(7) 

Certain technical adjustments to the lists containing the tariff lines under the heading 
"Cheese  and  curd"  are  necessary  due  to  the  protection  of  certain  products  as 
geographical indications under Regulation (EC) No 510/20067. 

In application of Article 17 of the Agreement, the Community has been requested by 
South  Africa  to  consider  a  proposal  relating  to  an  accelerated  timetable  for  tariff 
elimination for imports of certain cheeses in South Africa within the TRQ provided for 
in  Annex VI,  list 4  (Cheese  and  curd),  coupled  with  the  elimination  of  the  export 
refunds for Community exports of the same cheese products to South Africa.  

For  three  categories  of  cheeses,  namely  Gouda  (corresponding  EC  Customs  Code 
0406 90 78),  Cheddar  (corresponding  EC  Customs  Code  0406 90 21)  and  processed 
cheese,  not  grated  or  powdered  (corresponding  EC  Customs  Code  0406 30),  listed  in 
Annex VI,  list 4  the  current  50%  MFN  quota  reduction  applicable  on  imports  into 
South  Africa  of  products  originating  in  the  Community  should  be  changed  into  an 
in-quota zero duty. The Community should consequently eliminate export refunds for 
those  same  products  and  maintain  levels  of  export  refunds  for  other  products  at  the 
levels applicable as of 16 July 2004, depending on the full, effective and unconditional 
implementation by South Africa of the customs duties applicable on imports into South 
Africa of products originating in the Community. 

(8)  Without  prejudice  to  monetary  rate  adjustments,  Community  export  refunds  for  the 
TRQ cheeses listed in Annex VI of the Agreement on list 4, other than Gouda, Cheddar 
and  processed  cheeses  as  specified  under  recital 7  above,  should  not  be  increased 
above the levels applicable as of 16 July 20048 for other cheese products. 

HAS DECIDED AS FOLLOWS:  

Article 1 

The  position  to  be  adopted  by  the  Community  within  the  EU-South  Africa  Cooperation 
Council, through a written procedure, on the amendment of the relevant Annexes to the Trade, 
Development and Cooperation Agreement between the European Community and its Member 
States, of the one part, and the Republic of South Africa, of the other part, shall be based on 
the draft Decision of the Cooperation Council annexed to this Decision. 

Article 2 

The  representative  of  the  Community  in  the  Cooperation  Council  is  authorised  to  sign  the 
Decision  of  the  Cooperation  Council  in  the  name  of  the  Community,  and  any  exchange  of 
letters as provided in Article 5(2) of the draft decision. 

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OJ L 93, 31.3.2006, p. 12. 
OJ L 244, 16.7.2004, p. 27. 

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Article 3 

The  Decision  of  the  Cooperation  Council  shall  be  published  in  the  Official  Journal  of  the 
European Union as soon as it has been adopted. 

Done at Brussels,  

For the Council 
The President 

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ANNEX 

Draft Decision No …/… of the EU-South Africa Cooperation Council on the amendment 
of Annex IV and Annex VI to the Agreement on Trade, Development and Cooperation 
between the European Community and its Member States, of the one part,  
and the Republic of South Africa, of the other part (TDCA),  
regarding certain agricultural products 

THE EU-SOUTH AFRICA COOPERATION COUNCIL, 

Having  regard  to  the  Agreement  on  Trade,  Development  and  Cooperation  between  the 
European  Community  and  its  Member  States,  of  the  one  part,  and  the  Republic  of  South 
Africa,  of  the  other  part9  (hereinafter  referred  to  as  the  'TDCA'),  signed  in  Pretoria  on 
11 October  1999  and  entered  into  force  on  1 May  2004,  but  applied  provisionally  as  from 
1 January 2000, and in particular its Article 106(1); 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

The  meaning  of  "gross  weight"  in  the  context  of  the  tariff  lines  included  under  the 
heading  "Fruit,  nuts  and  other  edible  parts  of  plants"  in  Annex IV,  list 6  should  be 
clarified. 

Certain  technical  adjustments  to  the  lists  containing  certain  tariff  lines  under  the 
heading "Cheese and curd" are necessary due to the coverage of products as protected 
EU denominations10. 

South  Africa  is  obliged  to  open  the  tariff-rate  quota  as  set  out  in  Annex VI,  list 4 
regarding inter alia "Cheese and curd". 

For  three  categories  of  cheeses,  namely  Gouda  (corresponding  EC  Customs  Code 
0406 90 78),  Cheddar  (corresponding  EC  Customs  Code  0406 90 21)  and  processed 
cheese, not grated or powdered (corresponding EC Customs Code 0406 30), listed in 
Annex VI,  list 4  the  current  50%  MFN  quota  reduction  applicable  on  import  into 
South  Africa  of  products  originating  in  the  Community  should  be  changed  into  an 
in-quota zero duty. 

The  Community  should  eliminate  the  export  refunds  for  those  three  products 
mentioned  in  the  fourth  recital  above  and  not  increase  levels  of  export  refunds  for 
other cheese products above the levels applicable as of 16 July 2004, depending on the 
full, effective and unconditional implementation by South Africa of the customs duties 
applicable on import into South Africa of products originating in the Community, 

9 
10 

OJ L 311, 4.12.1999, p. 3. 
Regulation (EC) No 510/2006 (OJ L 93, 31.3.2006, p. 12). 

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HAS DECIDED AS FOLLOWS: 

Article 1 

In Annex IV, list 6, in the tariff lines included under the heading "Fruit, nuts and other edible 
parts of plants", in the right column the following footnote is added to the abbreviation "g.w.": 

"In this particular case, the term "gross weight" has to be considered as the aggregate mass of 
the goods themselves with the immediate packing but excluding any further packing." 

1. 

In Annex IV, list 7, the following list regarding "Cheese and curd" is inserted: 

Article 2 

Notes/tariff quota/reductions 

CN code 2007 

Cheese and curd 

0406 90 13 (Emmentaler) 

0406 90 15 (Sbrinz) 

0406 90 17 (Bergkäse, Appenzell) 

0406  90  18  (fromage  fribourgeois  and  tête  de 
moine) 

0406 90 23 (Edam) 

0406 90 25 (Tilsit) 

0406 90 27 (Butterkäse) 

0406 90 29 (Kashkaval) 

0406 90 35 (Kefalo-Tyri) 

0406 90 37 (Finlandia) 

0406 90 39 (Jarlsberg) 

0406 90 73 (Provolone) 

ex 0406 90 75 (Caciocavallo) 

ex  0406 90 76  (Danbo,  Fontal,  Fynbo,  Havarti, 
Maribo, Samsø) 

ex 0406 90 79 (Italico, Kernhem, Saint-Paulin) 

0406 90 81 

ex 
Cheshire, 
Wensleydale, Blamey, Colby, Monterey, Double 
Gloucester) 

(Lancashire, 

ex 0406 90 82 (camembert) 

ex 0406 90 84 (brie) 

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2. 

In Annex IV, list 8, the list regarding "Cheese and curd" is replaced by the following: 

CN code 2007 

Notes/tariff quota/reductions 

0406 20 10  (Glarus  herb  cheese  (known  as 
Schabziger) 

0406 40 10 (Roquefort) 

0406 90 15 (Gruyère) 

0406 90 18 (Vacherin Mont d'Or) 

0406 90 19  (Glarus  herb  cheese  (known  as 
Schabziger) 

0406 40 50 (Gorgonzola) 

0406 90 32 (Feta) 

0406 90 61 
Reggiano) 

(Grana 

Padano, 

Parmigiano 

ex 0406 90 63 (Fiore Sardo) 

ex 0406 90 75 (Asiago, Montasio, Ragusano) 

ex 0406 90 76 (Fontina) 

ex 0406 90 79 (Esrom, Saint-Nectaire, Taleggio) 

ex 0406 90 81 (Cantal) 

0406 90 85 (Kefalograviera, Kasseri) 

Article 3 

1. 

In Annex VI, list 4, the list regarding "Cheese and curd" is replaced by the following: 

HS code 1996 

Notes/tariff quota/reductions 

0406 10 10 (*) 

0406 10 20 (*) 

0406 20 10 (*) 

0406 20 90 (*) 

0406 30 00 (*) 

0406 40 10 (*) 

0406 40 90 (*) 

0406 90 10 (*) 

0406 90 25 (*) 

0406 90 35 (*) 

Global cheese and curd 5 000 t; 50%; agf 3% 

Global cheese and curd 5 000 t; 50%; agf 3% 

Global cheese and curd 5 000 t; 50%; agf 3% 

Global cheese and curd 5 000 t; 50%; agf 3% 

Global cheese and curd 5 000 t; 0%; agf 3% 

Global cheese and curd 5 000 t; 50%; agf 3% 

Global cheese and curd 5 000 t; 50%; agf 3% 

Global cheese and curd 5 000 t; 50%; agf 3% 

Global cheese and curd 5 000 t; 50%; agf 3% 

Global cheese and curd 5 000 t; 50%; agf 3% 

0406 90 90 (*) (except Gouda and Cheddar)  Global cheese and curd 5 000 t; 50%; agf 3% 

0406 90 XX [to be defined by South Africa] (*) 
(Gouda and Cheddar) 

Global cheese and curd 5 000 t; 0%; agf 3% 

(*) 

The annual growth factor (agf) will be applied annually to the relevant basic quantities. 

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2. 

3. 

4. 

5. 

The  Community  shall  eliminate  export  refunds  for  exports  to  South  Africa  for 
Gouda,  Cheddar  and  Processed  cheeses,  the  three  categories  of  cheese  products 
falling within CN codes 0406 90 21, 0406 90 78 and 0406 30. 

Without prejudice to monetary rate adjustments, for cheese products other than those 
referred to in paragraph 2 above, the Community shall not increase levels of export 
refunds  for  export  to  South  Africa  above  the  levels  fixed  by  Regulation  (EC) 
No 1305/2004 of 15 July 2004 fixing the export refunds on milk and milk products11. 

The Community shall implement the commitments provided in paragraphs 2 and 3 of 
this  Article  depending  on  the  full,  effective  and  unconditional  implementation  by 
South  Africa  of  the  customs  duties  applicable  on  import  into  South  Africa  of 
products  originating  in  the  Community  referred  to  in  paragraph 1  of  this  Article. 
South  Africa  shall  publish  in  the  government  Gazette  an  information  notice  before 
1 September  2007  to  repeal  the  measures  against  the  EC  cheese  exports  to  South 
Africa  and  the  opening  of  the  global  cheese  and  curd  quota  with  the  relevant 
modifications as described under paragraph 1. 

The  Community  shall  publish  the  amended  export  refunds  as  described  under 
paragraphs 2  and  3  in  the  Official  Journal  of  the  European  Union  before 
1 September 2007. 

Article 4 

Both  Parties  have  agreed  on  the  replacement  of  the  current  management  system  of  the 
Community  and  South  Africa  cheese  TRQs  by  a  “first  come  first  served”  system  to  be 
implemented as from 1 January 2008. 

1. 

2. 

This decision shall enter into force on 1 September 2007. 

Article 5 

In  case  South  Africa  has  not  finalised  the  ratification  process  by  the  date  set  in 
paragraph 1  of  this  Article,  the  entry  into  force  date  shall  be  agreed  between  the 
Parties by way of exchange of letters. 

11 

OJ L 244, 16.7.2004, p. 27. 

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