Proposal for a COUNCIL DECISION establishing the position to be adopted on behalf of the European Union within the World Trade Organization (WTO) as regards requests under Article IX of the Marrakesh Agreement establishing the World Trade Organization (the WTO Agreement) for granting and/or extending certain waivers
Date: 2011-11-14
Institutions: European Commission
Subjects: Cabo Verde, Canada, Cuba, World Trade Organisation, common commercial policy

EUROPEAN COMMISSION 

Brussels, 14.11.2011 
COM(2011) 762 final 

2011/0347 (NLE) 

Proposal for a 

COUNCIL DECISION 

establishing the position to be adopted on behalf of the European Union within the 
World Trade Organization (WTO) as regards requests under Article IX of the 
Marrakesh Agreement establishing the World Trade Organization (the WTO 
Agreement) for granting and/or extending certain waivers 

 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

OBJECTIVE OF THE PROPOSAL 

The  objective  of  this  proposal  is  to  allow  the  EU  to  join  a  consensus  in  the  World  Trade 
Organization (WTO) on the adoption of certain waivers1 by the WTO General Council. The 
proposal provides that the Council authorises the Commission to take a position on behalf of 
the  European  Union  within  the  WTO  as  regards  requests  under  Article  IX  of  the  WTO 
Agreement for granting and/or extending certain waivers, provided certain conditions are met 
including  the  conditions  laid  out  in  Article  IX  of  the  WTO  Agreement  which  justify  a 
decision granting a waiver.  

2. 

LEGAL BASIS OF THE PROPOSAL 

Article 218(9) of the Treaty on the functioning of the European Union (TFEU) provides that 
when  a  decision  having  legal  effect  needs  to  be  taken  in  a  body  set  up  by  an  international 
agreement, the Council, on a proposal from the Commission or the High Representative of the 
Union for Foreign Affairs and Security Policy, shall adopt a decision establishing the position 
to  be  adopted  on  the  Union’s  behalf.  The  granting  of  a  waiver/or  the  extension  of  a  waiver 
falls  under  this  provision  as  the  decision  is  taken  in  a  body  set  up  by  an  international 
agreement  (the  WTO  General  Council  or  Ministerial  Conference)  affecting  the  rights  and 
obligations of the EU. 

3. 

SCOPE OF THE PROPOSAL 

The Commission will be authorised to take a position on behalf of the EU to support requests 
for  specific  waivers  having  marginal  political,  economic  and  trade  importance  and  in 
accordance with the overall EU trade policy.  

The EU should be in a position to act in an expeditious manner in the WTO's decision making 
process  on  these  waiver  requests.  Individual  Council  Decisions  on  each  waiver  request 
covered  by  this  decision  would  appear  disproportionate  in  view  of  the  limited  scope  of  the 
waivers. It could also entail procedural difficulties as the EU-internal process for adopting a 
Council  Decision  could  take  longer  than  the  waiver  adoption  process  in  the  WTO  with  the 
consequence  that  the  EU  could  end  up  not  being  in  a  position  to  join  the  consensus  in  the 
General Council thereby delaying the WTO action. 

The  proposed  Decision  concerns  the  following  requests  for  waivers  and  requests  for  the 
extension of waivers: 

1) 

1 

Requests  for  waivers  and  requests  for  the  extension  of  waivers  related  to  the 
introduction  of  the  Harmonised  Commodity  Description  and  Coding  System  (so-
called Harmonised System, HS) on 1 January 1988, and its first, second, third, fourth 
and  fifth  amendments,  recommended  by  the  Council  of  the  World  Customs 
Organization,  respectively  called  “HS92  changes”,  “HS96  changes”,  “HS2002 

Waivers  are  permissions  granted  by  the  WTO  General  Council/Ministerial  Conference  to  derogate 
temporarily from certain WTO obligations which are otherwise applicable. 

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changes”,  “HS2007  changes”  and  “HS2012  changes”,  as  well  as  future  HS 
amendments, which establish the obligation to introduce these changes to Members’ 
schedules  of  concessions  (transposing  Schedules  of  tariff  concessions  into  the  HS 
nomenclature) 

These  collective  waivers2  relate  to  the  transposition  of  Members’  schedules  of  tariff 
commitments  into  more  recent  versions  of  the  Harmonised  System  nomenclature.  They  are 
needed for the situation when a WTO Member has followed the World Customs Organization 
recommendation and introduced nationally a more recent version of the nomenclature but has 
not yet had time to transpose it into its schedule of concessions in the context of the WTO (as 
a matter of fact the EU is benefitting from the HS2002, HS2007 waivers). It is, therefore, in 
the interest of the EU that the annual extension of such waivers is granted in an expeditious 
manner.  These  waiver  requests  concern  mainly  the  extension  of  existing  waivers  but  also 
adoption of new HS amendments. In this context, before the beginning of 2012, a new waiver 
on the HS2012 will have to be adopted (and the EU will have to request to be covered by it).  

2) 

Requests  for  the  extension  of  the  existing  waiver  related  to  Cape  Verde’s 
implementation of the of Article VII of the GATT 1994 and of the WTO Agreement on 
Customs Valuation. 

This waiver allows Cape Verde to extend the period for the full implementation of Article VII 
of  the  General  Agreement  on  Tariffs  and  Trade  (GATT)  and  of  the  WTO  Agreement  on 
Customs Valuation until 31 December 20113. A possible extension of this waiver would be of 
minimal economic and trade importance to the EU.  

3) 

Requests for the extension of the existing waiver related to Canada's tariff preference 
programme 

This  waiver  allows  Canada  to  provide  duty-free  treatment  to  eligible  imports  of 
Commonwealth  Caribbean  countries  benefiting  from  the  provision  of  CARIBCAN,  without 
being required to extend the same duty-free treatment to like products of any other Member. 
Canada's waiver is valid until 31 December 20114. A possible extension of this waiver would 
be  of  minimal  economic  and  trade  importance  to  the  EU.  It  would  also  be  in  line  with  the 
EU's  policies  to  support  the  economic  development  of  developing  countries  through  trade 
preferences. 

4) 

Requests  for  extensions  of  the  existing  waiver  by  Cuba  relieving  it  from  the 
provisions of paragraph 6 of the Article XV of the General Agreement on Tariffs and 
Trade 1994 

This waiver allows Cuba to derogate from the provisions of paragraph 6 of Article XV of the 
GATT,  which  provides  that  any  WTO  Member  which  ceases  to  be  a  member  of  the 
International Monetary Fund must enter into a special agreement with the WTO. This waiver 
was first granted to Cuba in 1964 and it is currently valid until 31 December 20115.  

2 

3 
4 
5 

The  last  waiver  on  the  HS96  can  be  found  in  document  WT/L/801,  on  the  HS2002  in  document 
WT/L/808 and on the HS2007 in document WT/L/809. 
See document WT/L/812. 
See document WT/L/677. 
See document WT/L/678. 

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5) 

Requests for extensions of the existing waiver on the Kimberley process certification 
scheme 

This  collective  waiver  is  related  to  the  Kimberley  Process  Certification  Scheme  for  Rough 
Diamonds,  in  which  also  the  EU  participates  together  with  19  other  WTO  Members.  The 
objective  of  this  waiver  is  to  prevent  trade  in  so-called  "conflict  diamonds".  This  waiver  is 
valid  until  31  December  20126.  A  possible  extension  of  this  waiver  would  be  of  minimal 
economic  and  trade  importance  to  the  EU  while  being  of  great  relevance  for  its  overall 
external relations. 

The proposal further provides that: 

– 

– 

The  Commission  shall  inform  the  Council  (via  the  Trade  Policy  Committee) 
sufficiently in advance of any meeting of the relevant WTO body at which a decision 
may be taken on a request covered by the decision. 

The Council may request that the procedure for the adoption of an individual Council 
decision on the waiver request in question be pursued. 

Consistent  with  Article  218(10),  the  European  Parliament  will  be  immediately  and  fully 
informed. 

6 

See document WT/L/676. 

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2011/0347 (NLE) 

Proposal for a 

COUNCIL DECISION 

establishing the position to be adopted on behalf of the European Union within the 
World Trade Organization (WTO) as regards requests under Article IX of the 
Marrakesh Agreement establishing the World Trade Organization (the WTO 
Agreement) for granting and/or extending certain waivers 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 207(4), first subparagraph, in conjunction with Article 218(9) thereof,  

Having regard to the proposal from the European Commission,  

Whereas: 

(1) 

Article  IX  of  the  Marrakesh  Agreement  establishing  the  World  Trade  Organization 
(the  “WTO  Agreement”)  sets  out  the  procedures  for  the  granting  of  waivers 
concerning the Multilateral Trade Agreements in WTO Agreement Annexes 1A or 1B 
or 1C and their annexes. 

(2)  When waiver requests are made in the WTO, often a very limited timeframe is given 
for  the  final  decision  by  the  relevant  WTO  body  on  these  requests,  while  prompt 
reaction from the WTO Members is required. 

(3) 

It  is  in  the  interest  of  the  Union  that  the  requests  for  granting  and/or  extending  the 
annual waivers7 related to the introduction of the Harmonised Commodity Description 
and  Coding  System  (so-called  Harmonised  System,  HS)  on  1  January  1988,  and  its 
first, second, third, fourth and fifth amendments, recommended by the Council of the 
World Customs Organization, respectively called “HS92 changes” (entered into force 
on 1 January 1992), “HS96 changes” entered into force on 1 January 1996), “HS2002 
changes”  (entered  into  force  on  1  January  2001),  “HS2007  changes”  (entered  into 
force  on  1  January  2007)  and  “HS2012  changes”  (will  enter  into  force  1  January 
2012), as well as future HS amendments, which establish the obligation to introduce 
these changes to Members’ schedules of concessions (transposing Schedules of tariff 
concessions into the HS nomenclature) be adopted in an expeditious manner.  

(4) 

The waiver allowing Cape Verde to extend the period for the full implementation of 
Article VII of the GATT and of the WTO Agreement on Customs Valuation will 

7 

The  last  waiver  on  the  HS96  can  be  found  in  document  WT/L/801,  on  the  HS2002  in  document 
WT/L/808 and on the HS2007 in document WT/L/809. 

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(5) 

(6) 

(7) 

expire on 31 December 20118. An extension would be of minimal economic and trade 
importance to the Union.  

The waiver related to Canada’s trade preference programme CARIBCAN will expire 
on 31 December 20119. The extension of this waiver would be of minimal economic 
and trade importance to the Union and would also be in line with the Union's policy to 
support the economic development of developing countries through trade preferences.  

The waiver allowing Cuba to derogate from the provisions of paragraph 6 of Article 
XV  of  the  General  Agreement  on  Tariffs  and  Trade  1994  will  expire  on  31 
December  201110.  An  extension  of  this  waiver  would  be  of  minimal  economic  and 
trade importance to the Union.  

The  waiver  allowing  countries  participating  in  the  Kimberley  Process  Certification 
Scheme  for  Rough  Diamonds  to  impose  certain restrictions  on  the trade  of  so-called 
"blood  diamonds"  will  expire  on  31  December  201111.Its  extension  would  be  of 
minimal economic and trade importance to the Union while being of great relevance 
for its overall trade relations, 

HAS ADOPTED THIS DECISION: 

Article 1 

The European Union shall support the following requests under Article IX:3 of the Marrakesh 
Agreement  establishing  the  World  Trade  Organization  (the  WTO  Agreement)  within  the 
relevant WTO body:  

(a) 

(b) 

(c) 

(d) 

requests for granting and/or extending the waivers related to the introduction of the 
Harmonised  Commodity  Description  and  Coding  System  (HS)  and  its  amendments 
from  1992  (“HS92  changes),  1996  (“HS96  changes”),  2002  (“HS2002  changes”), 
2007  (“HS2007  changes”)  and  2012  (“HS2012  changes”),  as  well  as  future  HS 
amendments, which establish the obligation to introduce these changes to Members’ 
schedules of concessions;  

requests for extending the waiver allowing Cape Verde to extend the period for the 
full  implementation  of  Article  VII  of  the  GATT  and  of  the  WTO  Agreement  on 
Customs Valuation; 

requests for extending the waiver allowing Canada to grant preferential treatment to 
selected developing countries (CARIBCAN programme).  

requests  for  extending  the  waiver  for  Cuba  relieving  it  from  the  provisions  of 
paragraph 6 of the Article XV of the General Agreement on Tariffs and Trade 1994; 

(e) 

requests for extending the waiver on the Kimberley process certification scheme. 

8 
9 
10 
11 

See document WT/L/812. 
See document WT/L/677. 
See document WT/L/678. 
See document WT/L/676. 

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Article 2 

The  Commission  shall  inform  the  Council  via  the  Trade  Policy  Committee  sufficiently  in 
advance  of  any  meeting  of  the  relevant  WTO  body  at  which  a  decision  may  be  taken  on  a 
request  covered  by  this  Decision  In  accordance  with  Article  241  of  the  Treaty,  the  Council 
may  request,  within  10  working  days  of  the  date  where  the  Commission  has  informed  the 
Trade Policy Committee that the procedure for the adoption of an individual Council decision 
on the waiver request in question be pursued.  

Article 3 

This Decision shall enter into force on the day of its adoption. 

Done at Brussels, 

For the Council 
The President 

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