Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Ministerial Conference of the World Trade Organization as regards public stockholding for food security purposes, trade-distorting domestic support, including for cotton, export restrictions in agriculture, fisheries subsidies, domestic regulation in services, and SMEs/Transparency of Regulatory Measures for Trade in Goods
Date: 2017-11-16
Institutions: Directorate-General for Trade and Economic Security, European Commission
Subjects: State aid, World Trade Organisation, agricultural policy, cotton, export restriction, fisheries policy, food resources, free movement of goods, ministerial meeting, storage of food

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   EUROPEAN COMMISSION  Brussels, 16.11.2017  COM(2017) 668 final 2017/0301 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Ministerial Conference of the World Trade Organization as regards public stockholding for food security purposes, trade-distorting domestic support, including for cotton, export restrictions in agriculture, fisheries subsidies, domestic regulation in services, and SMEs/Transparency of Regulatory Measures for Trade in Goods  
 
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT-MATTER OF THE PROPOSAL 

The present proposal for a decision concerns the establishment of the position to be taken on 
behalf  of  the  Union  in  the  11th  Ministerial  Conference  (MC11)  of  the  World  Trade 
Organization ("WTO") in connection with the possible adoption of several decisions relating 
to the Doha Development Agenda (DDA). The proposal covers: public stockholding for food 
security purposes, trade-distorting domestic support in agriculture including for cotton, export 
in  services,  and 
restrictions 
SMEs/transparency of regulatory measures for trade in goods. 

in  agriculture,  fisheries  subsidies,  domestic  regulation 

2. 

2.1. 

CONTEXT OF THE PROPOSAL 

The  Agreement  Establishing 
Agreement")  

the  World  Trade  Organization 

("WTO 

The Marrakesh Agreement Establishing the WTO (‘the WTO Agreement’) entered into force 
on  1  January  1995.  The  European  Union1  and  all  28  EU  Member  States  are  parties  to  the 
Agreement.  

2.2. 

The Ministerial Conference of the WTO 

The  Ministerial  Conference  is  the  highest  decision-making  body  of  the  WTO  and  meets  at 
least once every two years. The next meeting of the Ministerial Conference will take place in 
Buenos Aires, Argentina (10-13 December, 2017).  

2.3. 

The envisaged acts of the WTO Ministerial Conference  

MC11  may  adopt  decisions  having  legal  effects  regarding  (1)  public  stockholding  for  food 
security  purposes;  (2)  trade-distorting  domestic  support,  including  for  cotton;  (3)  export 
restrictions in agriculture; (4) fisheries subsidies; (5) domestic regulation in services; and (6) 
SMEs/transparency of regulatory measures for trade in goods (‘the envisaged acts’). 

3. 

POSITION TO BE TAKEN ON BEHALF OF THE UNION 

The objective of this proposal is to allow the Union to join a possible consensus at MC11 on the 
adoption of decisions having legal effects relating to the issues outlined above. 

While it is not yet clear if, and to what extent, WTO Members will be able to reach consensus, 
the EU position at MC11 has to be established in advance by the Council pursuant to Article 
218(9) TFEU.2  

The current proposal covers those issues on which decisions may be taken: 

 

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Public  stockholding  for  food  security  purposes  (PSH):  negotiations  aim  at 
agreeing  on  a  'permanent  solution'  fulfilling  the  goal  set  out  in  the  Bali  Ministerial 

Council  Decision  94/800/EC  of  22  December  1994  concerning  the  conclusion  on  behalf  of  the 
European  Community,  as  regard  matters  within  its  competence,  of  the  agreements  reached  in  the 
Uruguay Round of multilateral negotiations (1986-1994) (OJ L 336, 23.12.1994, p. 1). 
To the extent that, contrary to the current expectations, the consensus was formalised in an international 
agreement  amending  the  WTO  Agreement  or  in  a  plurilateral  international  agreement  among  some 
WTO  Members,  the  Commission  would  make  the  necessary  proposals  in  accordance  with  Article 
218(6) TFEU following the adoption of the texts and their opening for acceptance by the MC11 or by 
the WTO Members concerned during MC11.  

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 

 

 

 

 

Decision  of  7  December  2013  on  Public  Stockholding  for  Food  Security  Purposes 
(WT/MIN(13)/38-WT/L/913),  as  interpreted  by  the  subsequent  General  Council 
Decision  of  27  November  2014  (WT/L/939)  and  in  the  Ministerial  Decision  of  19 
December  2015  (WT/MIN(15)/44-WT/L/979).  Such  a  decision  could  be  similar  to 
the  current  Bali  interim  solution,  with  or  without  additional  conditions  and  with  or 
without an expanded scope (to include also later "post-Bali" programmes).  

in 

in  agriculture, 

Trade-distorting  domestic  support 
including  for  cotton: 
Negotiations on trade-distorting domestic support are embedded in Article 20 of the 
WTO  Agreement  on  Agriculture  and  have  been  part  of  the  DDA  mandate,  as 
embodied 
the  Doha  Ministerial  Declaration  of  14  November  2001 
(WT/MIN(01)/DEC/1). In order to inject momentum in the process, the EU together 
with  Brazil,  Colombia,  Peru  and  Uruguay  submitted  a  proposal  (JOB/AG/99)  on 
trade-distorting  domestic  support  (including  trade-distorting  domestic  support  for 
cotton as well as on public stockholding for food security purposes). The EU should 
support  an  outcome  that  may  be  reached  on  trade-distorting  domestic  support, 
including for cotton, at MC11.  

Export  restrictions:  Negotiations  on  strengthening  the  disciplines  on  export 
prohibitions  and  restrictions  in  Article  12.1  of  the  Agreement  on  Agriculture  are 
embedded in Article 20 of the WTO Agreement on Agriculture and are part of DDA 
negotiations.  Given  the  importance  of  the  issue  for  the  agricultural  reform  process 
and  for  moving  towards  a  fair  and  market-oriented  agricultural  trading  system,  the 
Union should support an outcome on export restrictions to the extent it is reached. 

Fisheries  Subsidies  (FS):  Negotiations  on  FS  are  part  of  the  DDA  and  the 
elimination  of  certain  fisheries  subsidies  is  foreseen  in  the  UN  Sustainable 
Development Goal 14 Target 6 ("SDG 14.6") agreed by Heads of States in 2015. The 
EU  submitted  to  the  WTO  a  proposal  on  the  issue  (TN/RL/GEN/181/Rev.1). 
Negotiations are underway and the Union should support an outcome in this area to 
the extent it is reached.  

Domestic  Regulation  (DR):  negotiations  on  domestic  regulation  in  services  were 
foreseen  in  Article  VI:4  of  the  WTO  General  Agreement  on  Trade  in  Services 
(GATS). Over the last months work on DR has advanced resulting in a consolidated 
negotiating text proposal supported by around 50 WTO Members (including the EU). 
The  proposed  DR  disciplines  are  limited  only  to  the  requirements  and  procedures 
related  to  licensing  and  qualifications,  as  well  as  technical  standards,  and  would 
apply to the sectors where market access commitments were taken under the GATS. 
Negotiations are underway and the Union should support an outcome in this area to 
the extent it is reached.  

SMEs/Transparency  of  Regulatory  Measures  for  Trade  in  Goods:  The  DDA 
mandate  foresaw  negotiations  on  market  access  for  non-agricultural  products 
including non-tariff barriers. In 2017 the EU submitted an NTB-related proposal to 
the  WTO  on  a  "Ministerial  Decision  on  Facilitating  SME  Trade:  Transparency  of 
Regulatory  Measures  for  Trade  in  Goods"  (TN/MA/W/144/Rev.3,  co-sponsored  by 
Australia,  Hong  Kong,  Taiwan,  Singapore,  and  Japan).  The  EU  proposal  would 
facilitate  SME  access  to  international  trade  by  enhancing  transparency  (with  the 
notification of the final texts to the WTO and the creation of a public repository) as 
well  as  good  regulatory  practices  (with  the  public  consultation  of  stakeholders  on 
new  measures,  with  a  scope  limited  to  TBT  and  SPS  measures).  Negotiations  are 

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underway  and  the  Union  should  support  an  outcome  in  this  area  to  the  extent  it  is 
reached. 

Since  negotiations  are  currently  ongoing  on  all  elements  of  the  possible  Buenos  Aires 
package, the Commission expects that the Council will take its decision on the EU position on 
the  outcome  of  the  negotiations  once  the  situation  regarding  the  relevant  texts  becomes 
sufficiently clear, possibly during the Ministerial Conference itself.  

The  initiative  is  fully  consistent  with  existing  policy  provisions.  Similar  decisions  were 
prepared  for  previous  WTO  Ministerial  Conferences,  including  most  recently  for  the  10th 
WTO Ministerial Conference in 2015.  

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

4.1.2.  Application to the present case 

The  WTO  Ministerial  Conference  is  a  body  set  up  by  an  agreement,  namely  the  WTO 
Agreement which according to Article IV:1 has the authority to take decisions on all matters 
covered  under  any  of  the  multilateral  trade  agreements,  including  decisions  having  legal 
effects.  

The envisaged acts mentioned above constitute acts having  legal effects, as they may affect 
the rights and obligations of the Union. 

The envisaged acts do not supplement or amend the institutional framework of the agreement. 

The procedural legal basis for the proposed decision, therefore, is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the  objective  and  content  of  the  envisaged  act  in  respect  of  which  a  position  is  taken  on 
Union's  behalf.  If  the  envisaged act  pursues  two  aims  or  has  two  components  and  if  one  of 
those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The  main  objective  and  content  of  the  envisaged  acts  relate  to  the  common  commercial 
policy, as the envisaged possible decisions on DDA issues fall thereunder. 

The substantive legal basis of the proposed decision, therefore, is Article 207 TFEU. 

4.3. 

Conclusion 

The  legal  basis  of  the  proposed  decision  should  be  Article  207  TFEU  in  conjunction  with 
Article 218(9) TFEU. 

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5. 

PUBLICATION OF THE ENVISAGED ACTS 

As  the  acts  of  the  WTO  Ministerial  Conference  will  supplement  the  WTO  Agreement,  it  is 
appropriate to publish them in the Official Journal of the European Union after their adoption. 

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2017/0301 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the Ministerial 
Conference of the World Trade Organization as regards public stockholding for food 
security purposes, trade-distorting domestic support, including for cotton, export 
restrictions in agriculture, fisheries subsidies, domestic regulation in services, and 
SMEs/Transparency of Regulatory Measures for Trade in Goods 

THE COUNCIL OF THE EUROPEAN UNION, 

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

The  Marrakesh  Agreement  Establishing  the  World  Trade  Organization  (‘the  WTO 
Agreement’)  was  concluded  by  the  Union  by  Council  Decision  94/800/EC  of  22 
December 19943 and entered into force on 1 January 1995.  

Pursuant to Articles IV:1 and IX:1 of the WTO Agreement, the Ministerial Conference 
of the World Trade Organization (‘WTO’) may adopt decisions by consensus. 

The WTO Ministerial Conference, during its 11th meeting on 10-13 December 2017, 
may adopt decisions on public stockholdings for food security purposes (PSH), trade-
distorting  domestic  support,  including  for  cotton;  export  restrictions  in  agriculture; 
fisheries  subsidies,  domestic  regulation  in  services,  and  Small-  and  Medium-Sized 
Enterprises (SMEs)/Transparency of Regulatory Measures for Trade in Goods.  

It is appropriate to establish the position to be taken on the Union's behalf in the WTO 
Ministerial Conference, to the extent that these decisions may have legal effects. 
The 11th WTO Ministerial Conference is considered by WTO Members as the deadline 
for  adopting  a  permanent  solution  on  the  issue  of  public  stockholdings  for  food 
security  purposes.  This  goal  was  stipulated  in  the  Bali  Ministerial  Decision  of  7 
December 2013 on Public Stockholding for Food Security Purposes (WT/MIN(13)/38-
WT/L/913),  as  interpreted  and  reconfirmed  by  subsequent  decisions.  In  this  respect, 
the Union should support a permanent solution on the issue of public stockholding for 
food security purposes to the extent it is reached. 

Negotiations  on  trade-distorting  domestic  support  are  embedded  in  Article  20  of  the 
WTO  Agreement  on  Agriculture  and,  together  with  cotton,  are  part  of  the  Doha 
Development Agenda (DDA). In this respect the EU together with Brazil, Colombia, 
Peru  and  Uruguay  submitted  a  proposal  (JOB/AG/99)  on  trade-distorting  domestic 
support  (including  trade-distorting  domestic  support  for  cotton  as  well  as  on  public 
stockholding) in 2017. Given the importance of the issue and the fact that the Union 

3 

OJ L 336, 23.12.1994, p. 1. 

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(7) 

(8) 

(9) 

has  been  one  of  the  proponents,  the  Union  should  support  an  outcome  on  trade-
distorting domestic support, including for cotton, to the extent it is reached.  

Negotiations on strengthening the disciplines on export prohibitions and restrictions in 
Article 12.1 of the Agreement on Agriculture are embedded in Article 20 of the WTO 
Agreement on Agriculture and form part of DDA negotiations. Given the importance 
of  the  issue  for  the  agricultural  reform  process  and  for  moving  towards  a  fair  and 
market-oriented agricultural trading system, the Union should support an outcome on 
export restrictions to the extent it is reached. 

Negotiations on fisheries subsidies are part of the DDA and the elimination of certain 
fisheries  subsidies  was  identified  as  a  priority  in  UN  Sustainable  Development  Goal 
14 Target 6 ("SDG 14.6") agreed by Heads of States in 2015. Given the importance of 
the issue for trade and sustainable development, and the fact that the Union has been 
one of the proponents, the Union should support an outcome to the extent it is reached.  

Negotiations  on  domestic  regulation  in  services  were  foreseen  in  Article  VI:4  of  the 
WTO General Agreement on Trade in Services (GATS) and form part of the DDA. An 
outcome  could  cover  administration  of  measures,  independence,  transparency, 
technical standards, development of measures and Special and Differential Treatment. 
Given  the  maturity  of  the  discussions  and  the  systemic  importance  for  reaching  a 
decision on the issue, the Union, being also one of the proponents, should support an 
outcome to the extent it is reached. 

(10)  Negotiations  on  market  access  for  non-agricultural  products  are  part  of  the  DDA 
mandate  and  include  non-tariff  barriers  (NTBs).  The  EU  submitted  to  the  WTO  in 
2017 a proposal for a "Ministerial Decision on Facilitating SME Trade: Transparency 
of Regulatory Measures for Trade in Goods" (TN/MA/W/144/Rev.3). This decision, in 
its entirety or with a narrower or broader scope could be adopted at MC11. Given the 
importance of the issue and the fact that the Union has been one of the proponents, the 
Union should support an outcome on the basis of the EU proposal to the extent it is 
reached. 

(11) 

In the WTO Ministerial Conference, the Union is to be represented by the Commission 
in accordance with Article 17(1) of the Treaty on European Union (TEU), 

HAS ADOPTED THIS DECISION: 

Article 1 
The  position  to  be  taken  on  the  Union's  behalf  in  the  11th  session  of  the  WTO  Ministerial 
Conference shall be the following: 

The  position  of  the  Union  within  the  Eleventh  Ministerial  Conference  of  the  World  Trade 
Organization  shall  be  to  join  the  consensus  reached  among  WTO  Members  with  a  view  to 
adopting decisions regarding public stockholding for food security purposes, trade-distorting 
domestic  support,  including  for  cotton,  export  restrictions  in  agriculture,  fisheries  subsidies, 
domestic regulation in services, and SMEs/Transparency of Regulatory Measures for Trade in 
Goods. 

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This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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