Proposal for a COUNCIL DECISION establishing the position to be taken on behalf of the European Union within the Council for Trade in Services of the World Trade Organization on the acceptance of preferences notified by WTO Members as regards services and service suppliers of Least-Developed Country other than those described in Article XVI of the GATS
Date: 2015-07-23
Institutions: Directorate-General for Trade and Economic Security, European Commission
Subjects: GATS, World Trade Organisation, least-developed country, most favoured nation, provision of services, tariff exemption

EUROPEAN 
COMMISSION 

Brussels, 23.7.2015  
COM(2015) 356 final 

2015/0156 (NLE) 

Proposal for a 

COUNCIL DECISION 

establishing the position to be taken on behalf of the European Union within the Council 
for Trade in Services of the World Trade Organization on the acceptance of preferences 
notified by WTO Members as regards services and service suppliers of Least-Developed 
Country other than those described in Article XVI of the GATS 

EN 

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EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The proposed Council Decision is the first step of the implementation of the WTO Services 
Waiver  for  Least  Developed  Countries  (LDCs).  The  Services  Waiver1  allows  WTO 
Members to grant unilateral preferences on services to the LDCs and it requires acceptance by 
the  Council  for  Trade  in  Services  (CTS)  of  the  notified  preferences  granted  with  respect  to 
measures  other  than  those  described  in  Article  XVI  of  the  GATS  (market  access).  The 
proposed Council Decision establishes the position to be taken by the Commission on behalf 
of the Union in the CTS.  

The proposed Council Decision does not refer to any treatment the EU itself will grant to 
LDCs,  what  would  be  the  next  step  for  the  operationalization  of  the  waiver.  The  intended 
treatment to be notified to the CTS and accorded to LDCs is currently being prepared along 
the lines of an approach consulted with the Member States and signalled to WTO Members at 
a high-level meeting of the CTS on 5 February 2015.  

• 

Consistency  with  existing  policy  provisions  in  the  policy  area  and  other  Union 
policies 

At the Ninth WTO Ministerial Conference in Bali the European Union joined the consensus 
on the adoption of a Services Waiver for LDCs. The EU is committed to the success of the 
upcoming  Tenth  Ministerial  Conference  of  the  WTO  in  Nairobi  in  December  2015  and  to 
moving  decisively 
the 
implementation  of  the  Bali  outcome  package,  including  the  LDC  elements.  The  proposed 
Council Decision is part of this Bali implementation process.  

the  Doha  Development  Round  negotiations  and 

forward 

By supporting the economic advancement of LDCs, the proposed acceptance of preferences 
notified by other WTO Members will contribute to the achievement of the objectives of the 
Treaty  providing  that  the  EU  shall  contribute  to  the  harmonious  development  of  the  world 
trade  and  define  and  pursue  common  policies  to  foster  the  sustainable  development  of 
developing countries2. This proposed acceptance will also be conducive to conclude a part of 
the Doha Development Agenda negotiations on services. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  legal  bases  for  the  proposed  Council  Decision  are  Articles  91,  100  and  the  first 
subparagraph  of  Article  207(4),  in  conjunction  with  Article  218(9)  of  the  Treaty  on  the 
functioning of the European Union (TFEU).  

Article 218(9) TFEU provides that when an act having legal effects needs to be adopted 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  with  respect  to  the 
adoption  of  this  act  in  this  body.  The  acceptance  of  preferences  notified  by  other  WTO 

1 

2 

Waivers  are  permissions  granted  by  the  WTO  General  Council/Ministerial  Conference  to  derogate 
temporarily from certain WTO obligations which are otherwise applicable. 
Article 205 and 206 TFEU and Article 21 of the TEU. 

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Members falls under this provision as the decision is taken in a body set up by an international 
agreement (Council for Trade in Services) affecting the rights and obligations of the EU. 

The  envisaged  preferences  relate  to  obligations  under  the  General  Agreement  on  Trade  in 
Services  and  may  concern  all  service  sectors,  including  transport  services.  Therefore,  the 
proposed decision falls within the scope of Articles 91, 100 and 207(4), first subparagraph, of 
the TFEU.  

3. 

BUDGETARY IMPLICATIONS 

The proposal has no budgetary implications. 

4. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The approval of the preferential treatment granted to LDCs by other WTO Members does not 
trigger any implementation process in the EU.  

EN 

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   EN 

2015/0156 (NLE) 

Proposal for a 

COUNCIL DECISION 

establishing the position to be taken on behalf of the European Union within the Council 
for Trade in Services of the World Trade Organization on the acceptance of preferences 
notified by WTO Members as regards services and service suppliers of Least-Developed 
Country other than those described in Article XVI of the GATS 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union, and in particular of 
Articles  91,  100  and  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) 

(2) 

(3) 

(4) 

(5) 

(6) 

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

A  waiver  was  requested  whereby  the  WTO  Members  would  be  enabled  to  grant 
preferential  treatment  to  services  and  service  suppliers  of  Least-Developed  Country 
Members without according the same treatment to like services and service suppliers 
of  all  other  WTO  Members  by  exceptionally  derogating  from  the  obligation  under 
paragraph 1 of Article II of the General Agreement on Trade in Services (GATS). The 
Council  adopted  the  position  of  the  Union  in  support  of  the  waiver  by  Council 
Decision of 14 December 2011 (2012/8/EU). 

The WTO Ministerial Decision of 17 December 2011 authorising WTO Members to 
grant such preferential treatment to services and service suppliers of Least-Developed 
Country  Members  for  a  period  of  15  years,  sets  forth  in  paragraphs  1  and  2  that 
Members  according  preferential  treatment  pursuant  to  this  waiver  shall  submit  a 
notification to the Council for Trade in Services (CTS) and that preferential treatment 
with respect to the application of measures other than those described in Article XVI 
of the GATS, is subject to approval by the CTS in accordance with its procedures.  

The  requirement  of  CTS  approval  with  regard  to  those  measures  was  restated  in 
paragraph 1.3 of the WTO Ministerial Decision of 7 December 2013.  

The  acceptance  of  preferences  granted  by  other  WTO  Members  to  the  services  and 
service  suppliers  of  Least-Developed  Country  Members  is  in  the  interest  of  the 
development objectives of the European Union and is conducive to conclude a part of 
the Doha Development Agenda negotiations on services.  

It is appropriate, therefore, to establish the position to be taken by the Union within the 
CTS  to  approve  the  preferential  treatment  granted  by  WTO  Members  regarding 
measures other than those described in Article XVI of the GATS, 

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HAS ADOPTED THIS DECISION:  

Article 1 

The position of the Union within the Council for Trade in Services of the WTO shall be to 
support the approval of the preferential treatment granted by WTO Members to services and 
service suppliers of least-developed countries regarding the application of measures other than 
those described in Article XVI of the GATS ("Market Acceess") in accordance with the WTO 
Ministerial Decision of 7 December 2013 (WT/L/918).  

This position shall be expressed by the European Commission. 

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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