Proposal for a COUNCIL DECISION establishing the European Union position within the TRIPS Council of the World Trade Organisation on the request for an extension of the transition period under TRIPS Article 66.1 for least-developed countries
Date: 2013-05-27
Institutions: European Commission
Subjects: intellectual property, least-developed country, renewal of an agreement

EUROPEAN 
COMMISSION 

Brussels, 27.5.2013  
COM(2013) 309 final 

2013/0161 (NLE) 

Proposal for a 

COUNCIL DECISION 

establishing the European Union position within the TRIPS Council of the World Trade 
Organisation on the request for an extension of the transition period under TRIPS 
Article 66.1 for least-developed countries 

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EXPLANATORY MEMORANDUM 

1. 

INTRODUCTION 

From the adoption in 1994 of the World Trade Organisation’s (WTO) Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPS), Least Developed Countries (LDCs) 
were exempted from most TRIPS obligations for a period of ten years, beyond the initial one 
year of general exemption for all WTO Members, via its Article 66.1. This same Article also 
provides for the possibility of further extensions of this period upon a duly motivated request. 
In 2005, following a specific request from LDCs, this exemption was duly extended to 1 July 
2013. 

In view of the approaching deadline, Haiti, on behalf of the LDC group, formally submitted a 
request on 5 November 2012 for an extension of the transitional period (see WTO Document 
IP/C/W/583).  Rather  than  asking  for  a  specific  extension  calculated  in  years,  this  time  the 
LDC group has asked for an exemption ”…until they cease to be a least developed country 
Member."1  

A summary of the background to the LDC Group's request is set out below. 

2. 

SUMMARY 

The  TRIPS  Agreement’s  preamble  acknowledges  LDCs'  particular  need  for  maximum 
flexibility  in  implementing  laws  and  regulations  domestically,  the  objective  being  to  enable 
them  to  create  a  sound  and  viable  technological  base.  It  also  allowed  LDCs  ten  years  from 
1995 to apply the bulk of TRIPS obligations. The transition period was extendable in response 
to  a  specific  request  and  in  2005  LDCs  asked  for  an  extension  by  15  years  and  ultimately 
obtained an extension by 7.5 years, until 1 July 2013. Meanwhile, the 2001 Doha Declaration 
on  TRIPS  and  Public  Health  had  already  extended  the  period  for  LDCs  to  comply  with 
provisions on patent and data protection for pharmaceuticals to 2016. 

In  the  discussions  leading  up  to  the  decision  in  2005  to  extend  the  deadline  for  compliance 
with  TRIPS  obligations,  one  of  the  questions  raised  was  whether  the  extension  should  be 
given on a country by country basis or as a group. The final agreement gave the extension to 
all LDCs as a group. When the TRIPS Council agreed to the 2005 extension, it also set up a 
process  to  help  LDCs  implement  TRIPS  within  their  national  intellectual  property  regimes. 
The TRIPS Council called on LDCs to identify their priority needs for technical and financial 
cooperation  and  asked  developed  countries  to  help  address  those  identified  needs.  It  also 
called for enhanced cooperation with the World Intellectual Property Organisation and other 
relevant  international  organisations.  The  emphasis  was  on  the  individual  priorities  of  each 
LDC and on ensuring these needs are effectively met. 

Recognising  the  utility  of  intellectual  property  for  development,  ministers  at  the  Regional 
Preparatory  Meeting  for  Africa  in  Dar  es  Salaam  in  March  2013  ahead  of  the  Annual 
Ministerial  Review  of  the  UN  Economic  and  Social  Council,  for  example  declared  that 
"Policymakers in Africa should redouble efforts to develop their legal and policy frameworks, 
including  their  intellectual  property  legislation  and  policy,  so  as  to  release  the  region’s 
untapped  potential."  Further  postponements  in  implementing  TRIPS  provisions  could 
therefore  hinder  growth  possibilities  for  LDCs.  An  indefinite  timeline  could  also  remove 
some  incitation  to  work  towards  implementation  at  all.  However,  it  remains  the  case  that 

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Proposed  text  for  a  TRIPS  Council  Decision  in  the  LDC  Communication  reads:  “Least  developed  country 
Members shall not be required to apply the provisions of the Agreement, other than Articles 3, 4 and 5, until they 
cease to be a least developed country Member”. 

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some LDCs have progressed further than others in their implementation. Bearing this in mind, 
a  limited  extension  is  acceptable.  A  limited  extension  should  be  accompanied  by  further 
targeted  technical  assistance,  of  which  the  EU  has  been  a  significant  provider.  Moreover,  a 
comprehensive analysis of the state of implementation on the ground in each LDC would be 
useful  in  order  to  draw  a  clearer  picture  of  the  situation  and  thus  allow  for  prioritised  and 
effective assistance. 

To  avoid  the  debate  in  the  WTO  from  digressing  from  the  issue  at  hand,  a  new  decision  to 
extend the exemption should follow the general structure of the one taken in 2005. Notably, 
LDCs committed to not reduce the level of intellectual property protection that already existed 
in their country during the transition period. Furthermore, the current decision to be taken on 
the  general  exemption  for  LDCs  to  implement  TRIPS  should  be  kept  separate  from  the 
decision of the TRIPS Council of 27 June 2002 on the "Extension of the Transition Period … 
for LDC Members for Certain Obligations with respect to Pharmaceutical Products". 

3. 

RECOMMENDATION 

As a response to the LDC group’s request, the Commission recommends the Council of the 
European  Union  to  establish  the  following  Union  position:  LDC  Members  should  not  be 
required to apply the provisions of the TRIPS Agreement, other than Articles 3, 4 and 5, for a 
period no longer than the duration of the extension granted previously in 2005, or until such a 
date on which they cease to be a least-developed country Member, whichever date is earlier. 
During  this  time,  proper  consideration  could  be  given  to  the  varying  states  of  TRIPS 
implementation  across  LDCs,  and  how  technical  assistance  can  be  further  used  to  help 
address  these  shortcomings,  with  primary  focus  on  those  areas  of  most  immediate  utility. 
During  this  extension  period,  LDCs  should  not  decrease  their  already  existing  level  of  IP 
protection below the standards set by TRIPS. 

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2013/0161 (NLE) 

Proposal for a 

COUNCIL DECISION 

establishing the European Union position within the TRIPS Council of the World Trade 
Organisation on the request for an extension of the transition period under TRIPS 
Article 66.1 for least-developed countries 

THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

On  5  November  2012  Haiti,  on  behalf  of  the  LDC  Group,  formally  requested  an 
extension  to  the  transition  period  for  the  implementation  of  the  World  Trade 
Organization's  (WTO)  Agreement  on  Trade-Related  Aspects  of  Intellectual  Property 
Rights (TRIPS), pursuant to Article 66.1 of that Agreement. 

The existing transition period, as agreed in the Decision of the Council for TRIPS of 
29 November 2005 (IP/C/40), was due to expire on 1 July, 2013. 

Article 66.1 of the TRIPS Agreement provides that the Council for TRIPS "shall, upon 
duly motivated request by a least developed country Member, accord extensions of this 
period". 

The  leveraging  and  protection  of  intellectual  property  is  a  key  factor  in  promoting 
socio-economic  growth,  as  for  example  recognised  by  ministers  at  the  Regional 
Preparatory Meeting for Africa in Dar es Salaam in March 2013 ahead of the Annual 
Ministerial Review of the United Nations Economic and Social Council, which called 
for  a  redoubling  of  effort  to  develop  legal and  policy  framework  for  e.g.  intellectual 
property. 

Least  developed  country  members  (LDCs)  have  progressed  at  different  paces  and 
depth in their implementation of the WTO TRIPS Agreement. 

Valuable  steps  have  already  been  taken  in  the  field  of  intellectual  property  by  a 
number  of  LDCs,  but  it  remains  the  case  that  LDCs  have  special  needs  and 
requirements and continue to face economic, financial and administrative constraints, 
therefore they have a need for flexibility and further time to implement the provisions 
of TRIPS. 

(7) 

Accordingly, it is necessary to extend the transition period for implementation of the 
TRIPS Agreement for least-developed country members of the WTO, 

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HAS ADOPTED THIS DECISION:  

Article 1 

1. 

2. 

3. 

The  position  to  be  taken  by  the  European  Union  within  the  TRIPS  Council  of  the 
World  Trade  Organization  on  the  request  for  an  extension  of  the  transition  period 
under TRIPS Article 66.1 for least-developed country Members (LDCs) is that LDCs 
should not be required to apply the provisions of the TRIPS Agreement, other than 
Articles 3, 4 and 5, for a period no longer than the duration of the extension granted 
previously in 2005, or until such a date on which they cease to be a least-developed 
country Member, whichever date is earlier.  

During this extension period, LDCs should not decrease their already existing level 
of IP protection below the standards set by TRIPS. 

During  this  period,  proper  consideration  should  be  given  to  the  varying  states  of 
TRIPS  implementation  across  LDCs,  and  how  technical  assistance  and  capacity 
building  programmes  can  be  further  used  to  help  address  these  shortcomings,  with 
primary focus on those areas of most immediate utility.  

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

Done at Brussels,  

Article 2 

For the Council 
The President 

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