Proposal for a COUNCIL DECISION establishing the position to be taken by the European Union within the Committee on Government Procurement on the withdrawal of the Union objections to the delisting of three entities from Japan's Annex 3 to Appendix I to the Agreement on Government Procurement
Date: 2014-09-01
Institutions: European Commission
Subjects: Japan, free-trade agreement, public contract, railway industry













EUR-Lex - 52014PC0539 - EN











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52014PC0539

Proposal for a COUNCIL DECISION establishing the position to be taken by the European Union within the Committee on Government Procurement on the withdrawal of the Union objections to the delisting of three entities from Japan's Annex 3 to Appendix I to the Agreement on Government Procurement /* COM/2014/0539 final - 2014/0249 (NLE) */









EXPLANATORY MEMORANDUM
1.           CONTEXT OF THE PROPOSAL
In 2001 Japan notified to the GPA
Secretariat its intention to withdraw from its coverage under the WTO Agreement
on Government Procurement (GPA) the three Japanese Railway (JR) Honshu companies- the East Japan Railway Company, Central Japan
Railway Company and West Japan Railway Company which
are railway companies previously owned in majority by the Japanese government. 
At that time the EU, other Parties filed in
objections to the delisting of those companies which were lifted between 2002
and 2006.
Various consultations took place between
the EU and Japan but concerns remained on the EU side, whereas all other GPA
Parties lifted their objections. Taking into account this situation, Annex 3 of
Japan's schedule under the revised GPA does not list the three companies but 
includes a note specifying that the companies are nevertheless deemed to remain
covered until the EU withdraws the objection against the delisting of these
companies. 
During the scoping exercise for the
EU-Japan Free Trade Agreement the EU expressed its readiness to lift the
objection to the delisting of the three Japanese companies, against the
background of the FTA negotiations on government procurement. This was the
approach adopted by the Council in the Roadmap on Railways and Urban Transport
that it endorsed together with the negotiating directives. 
In the light of the positive development of
the FTA negotiations on railways procurement,  in particular the confirmation
by Japan of its intention to significantly revise the terms of application of
its GPA reservation on railways ( "Operational Safety Clause" as
stipulated under note 4 to Annex 2 and note 3(a) of Annex 3 of Japan) and to
promote transparent and non-discriminatory procurement practices by the three
JR Honshu companies, the European Union can withdraw its objections to the
delisting of those companies from the GPA coverage of Japan.
2.           LEGAL ELEMENTS OF THE
PROPOSAL
Both the 1994 and the revised GPA[1]
lay down simplified decision making procedures for the modification of the
lists of entities of each contracting party ("delisting"). Those
modifications take place through the GPA Committee, as the body responsible for
the operation of the GPA. Where there is no objection to the proposed
modification in the GPA Committee, the changes in the GPA parties' schedules
are accepted.  This decision will have legal effects for the GPA parties
concerned as it changes the rights and obligations of the parties constituted
under the agreement.   
In the case of Japan's proposed "delisting" of the three
railway companies, all contracting parties accepted the modification by
abstaining from communicating objections to the Committee, with the exception
of two other GPA parties, which subsequently lifted their objections by means
of notifications.
It follows that all contracting parties but the EU have taken a
positive position in the context of the GPA Committee (either by abstaining
from formulating objections or by lifting objections). This amounts to
acceptance of Japan's proposed modification. However, since the EU maintains
its objection, the Committee as such cannot be said to have accepted the
modification. For this to happen, the EU must take a positive position in the
context of the GPA Committee, since the other contracting parties have already
done so.
The revised GPA includes a transitional provision to deal with the
situation in the GPA Committee. This is note 5 of Annex 3 to Japan's schedule in Appendix I of the GPA. By virtue of the note, the three railway
companies are deemed to be provisionally included as entities covered by the
GPA. However, the note shall cease to have effect once the EU notifies to the
GPA Committee that it withdraws its objection. There is therefore a continuum
between the events in the GPA Committee before the revised GPA entered into
force and afterwards. The non-objection by the other contracting parties has
furthermore been confirmed by means of their acceptance of the revised GPA
package as adopted by the GPA Committee.
A possible notification to the GPA Committee to lift the objections
should therefore be regarded as a change of the EU position (which so far has
been to object to Japan's modification) in the GPA Committee. A notification
from the EU constitutes the last requirement for the GPA Committee procedure to
come to an end with the collective acceptance of Japan's modification, which
would have legal effects for all GPA contracting parties, not only the EU. 
Upon receipt of the EU notification, the matter will be on the
agenda on the GPA Committee meeting. In that meeting, the GPA Committee is
expected to act on the issue as to reflect the fact that in the light of the
change in the position by the EU as regards the railways companies, note 5 of Annex
3 of Japan's schedule ceases to have effect and to declare the completion of
the "delisting procedure". Later, the Committee would be expected to
receive a true and certified copy of Annex 3 to Japan's schedule from the GPA
Secretariat, reflecting the new situation.
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, should adopt a Decision establishing the position
to be adopted on the Union’s behalf. In the light of the above, the lifting of
the objections of the Union to the withdrawal of the three entities from
Japan's Annex 3 to Appendix I of the Agreement on Government Procurement falls
under this provision as  the decision is taken in a body set up by an
international agreement affecting the rights and obligations of the EU.
2014/0249 (NLE)
Proposal for a
COUNCIL DECISION
establishing the position to be taken by
the European Union within the Committee on Government Procurement on the
withdrawal of the Union objections to the delisting of three entities from Japan's Annex 3 to Appendix I to the Agreement on Government Procurement
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the
Functioning of the European Union, and in particular the first subparagraph of Article
207(4) in conjunction with Article 218(9) thereof,
Having regard to the proposal from the
European Commission,
Whereas:
(1)       On 29 August 2001 the
notification of Japan under Article XXIV:6(b) of the 1994 Agreement on
Government Procurement, (‘the GPA’) on the withdrawal of East Japan Railway
Company, Central Japan Railway Company and West Japan Railway Company from
Annex 3 to Appendix I of Japan was circulated to the Parties to the GPA.
(2)       On 1 October 2001 the
European Union objected, pursuant to Article XXIV:6(b) of the 1994 GPA, to the
proposed modifications as notified by Japan in order to examine thoroughly the
reasons for the intended delisting of those entities as some initial concerns occurred.
(3)       Despite the various
consultations which took place between the Union and Japan, the Union did not withdraw its objections contrary to all other objecting Parties.
(4)       During the revision of the
1994 GPA, account was taken of this situation. Japan did not list the three
concerned companies in its Annex 3 but included a note specifying that the
companies are deemed to be included in its Annex 3 until such time as the
European Union withdraws its objection against the delisting of these
companies.
(5)       In the framework of the
scoping exercise for the EU-Japan Free Trade Agreement and in line with the
approach adopted by the Council on the Roadmap on railways and urban transport and
without prejudice to any assessment of the level of competition on the Japanese
railway market, the Union expressed its readiness to withdraw the objection to
the delisting of the three Japanese companies, against the background of the
FTA negotiations on government procurement.
(6)       In the light of the
confirmation by Japan of its intention to significantly revise the terms of
application of the operational safety clause as stipulated in note 4 to Annex 2
and note 3(a) to Annex 3 in Japan's schedule in Appendix I to the  GPA and to
promote transparent and non-discriminatory procurement practices by the three
railway companies, the European Union should withdraw its objections to the
delisting of those companies.
(7)       The withdrawal of the
objections should be without prejudice to the Union's position in the GPA Committee
on the decision on indicative criteria that demonstrate the effective
elimination of government control or influence over an entity's covered
procurement, pursuant to Article XIX (8) of the revised GPA, in particular
whether government control or influence is effectively eliminated where the
entities concerned are not operating in a competitive environment.
(8)       It is appropriate,
therefore, to establish the position to be taken by the Union within the WTO Committee
on Government Procurement in relation to the withdrawal of the objections,
HAS ADOPTED THIS DECISION: 
Article 1
The position to be taken by the European
Union within the Committee on Government Procurement of the World Trade
Organization is that the European Union shall withdraw the objections to the
withdrawal of the East Japan Railway Company, Central Japan Railway Company and
West Japan Railway Company from Japan's Annex 3 to Appendix I to the Agreement
on Government Procurement.
Article 2
This Decision shall enter into force on the
day of its adoption.
Done at Brussels,
                                                                       For
the Council
                                                                       The
President
[1]               2014/115/EU: Council Decision of 2 December 2013 on
the conclusion of the Protocol Amending the Agreement on Government
Procurement, OJ L 68, 7.3.2014, p. 1–1.