Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union within the General Council of the World Trade Organisation as regards the adoption of a decision exempting certain purchases of foodstuffs from application of export prohibitions or restrictions
Date: 2020-11-10
Institutions: Directorate-General for Agriculture and Rural Development, European Commission
Subjects: World Trade Organisation, export, export policy, export restriction, foodstuff, humanitarian aid, purchase

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   EUROPEAN COMMISSION  Brussels, 10.11.2020  COM(2020) 729 final 2020/0325 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union within the General Council of the World Trade Organisation as regards the adoption of a decision exempting certain purchases of foodstuffs from application of export prohibitions or restrictions  
 
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns the decision establishing the position to be taken on Union's behalf in 
the  General  Council  of  the  World  Trade  Organization  (WTO)  on  a  proposal  aimed  at 
exempting  the  purchases  of  foodstuffs  for  non-commercial  humanitarian  purposes  by  the 
World Food Programme from application of export prohibitions or restrictions. 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Marrakesh Agreement establishing the World Trade Organization  

The  proposed  Council  Decision  seeks  to  authorise  the  European  Commission  to  support  on 
Union’s behalf a decision to be taken in the General Council of the World Trade Organization 
(WTO).  The  World  Trade  Organization  was  established  by  Marrakesh  Agreement  (‘WTO 
Agreement’) that entered into force on 1 January 1995. 

The European Union is a party to that Agreement.  

2.2.  Ministerial Conference and General Council of the World Trade Organization 

Pursuant to paragraph 1 of Article IV of the WTO Agreement, the Ministerial Conference has 
the authority to take decisions on all matters under any of the Multilateral Trade Agreements. 

However,  pursuant  to  paragraph  2  of  Article  IV  of  the  WTO  Agreement,  in  the  intervals 
between meetings of the Ministerial  Conference, its functions are conducted by the General 
Council. 

Pursuant  to  paragraph  1  of  Article  IX  of  the  WTO  Agreement,  WTO  bodies  strive  to  take 
their decisions by consensus. 

2.3. 

The envisaged act of the General Council of the World Trade Organisation 

Paragraph  2(a)  of  Article  XI  of  GATT  1994  permits  WTO  Members  to  impose  export 
prohibitions  and  restrictions  on  agricultural  products,  including  food  for  humanitarian 
purposes,  subject  to  the  disciplines  set  out  in  Article  12  of  the  WTO  Agreement  on 
Agriculture.  

In  the  context  of  the  COVID-19  pandemic,  some  WTO  Members  have  again  reverted  to 
applying export restrictions or prohibition on agricultural products. 

The WTO General Council in its meeting in December 2020, or at a subsequent meeting in 
2021, may be requested to adopt a decision aimed at exempting non-commercial humanitarian 
purchases  of  foodstuffs  by  the  World  Food  Programme  from  the  application  of  export 
prohibitions or restrictions.  

The proposal is presented in view of the critical humanitarian support provided by the World 
Food Programme, made more urgent in the light of the COVID-19 pandemic and other crises.  

Decisions  at  the  WTO  are  taken  by  consensus.  Therefore,  the  Council  needs  to  adopt  a 
Decision under Article 218(9) TFEU to authorise the EU to join the consensus.  

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The  objective  of  this  proposal  is  to  enable  the  European  Union  to  join  a  consensus  on  the 
adoption  of  a  decision  exempting  the  purchases  of  foodstuffs  for  non-commercial 
humanitarian purposes by the World Food Programme from application of export prohibitions 

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or restrictions possibly as early as the December 2020 WTO General Council meeting or at a 
subsequent meeting of the Council in 2021. 

From the Union’s perspective, a timely decision by the Council to join consensus on this issue 
at  the  General  Council  is  crucial  to  sustain  the  EU  position  in  the  WTO,  in  particular 
considering the urgent humanitarian context of the issue due to the Covid-19 pandemic. 

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. 

Pursuant  to  paragraph  2  of  Article  IV  of  the  WTO  Agreement,  in  the  intervals  between 
meetings of the Ministerial Conference, its functions are conducted by the General Council. 

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

The  envisaged  act  does  not  supplement  or  amend  the  institutional  framework  of  the 
Agreement. 

Therefore, the procedural legal basis for the proposed decision 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 the 
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 act relate to the common commercial policy. 

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

4.3. 

Conclusion 

The legal basis of the proposed decision should be the first subparagraph of Article 207(4), in 
conjunction with Article 218(9) TFEU. 

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5. 

PUBLICATION OF THE ENVISAGED ACT 

As the act of the WTO General Council will supplement the WTO Agreement by excluding 
the  foodstuffs  purchased  for  non-commercial  humanitarian  purposes  by  the  World  Food 
Programme  from  export  prohibitions  or  restrictions,  it  is  appropriate  to  publish  it  in  the 
Official Journal of the European Union after its adoption. 

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2020/0325 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union within the General Council 
of the World Trade Organisation as regards the adoption of a decision exempting 
certain purchases of foodstuffs from application of export prohibitions or restrictions 

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) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

On  22  December  1994,  the  Marrakesh  Agreement  Establishing  the  World  Trade 
Organization  (the  ‘WTO  Agreement’)  was  concluded  by  the  Union  by  Council 
Decision 94/800/EC1  and entered into force on 1 January 1995. 

Pursuant  to  paragraph  1  of  Article  IV  of  the  WTO  Agreement,  the  Ministerial 
Conference  of  the  World  Trade  Organization  (‘WTO’)  has  the  authority  to  take 
decisions on all matters under any of the Multilateral Trade Agreements.  

Pursuant  to  paragraph  2  of  Article  IV  of  the  WTO  Agreement,  the  functions  of  the 
Ministerial Conference are to be conducted by the General Council of the WTO in the 
intervals between meetings of the Ministerial Conference. 

Pursuant  to  paragraph  1  of  Article  IX  of  the  WTO  Agreement,  WTO  bodies  follow, 
where possible, the practice of taking decisions by consensus. 

The General Council of the WTO, during its December 2020 meeting or a subsequent 
meeting  in  2021,  may  be  requested  to  consider  a  proposal  aimed  at  exempting 
foodstuffs  purchased  for  non-commercial  humanitarian  purposes  by  the  United 
Nations World Food Programme from export prohibitions and restrictions. 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union’s  behalf  in  the 
General  Council  of  the  WTO,  as  the  decision  to  be  adopted  will  be  binding  on  the 
Union.  

Paragraph 2(a) of Article XI of GATT  1994 permits WTO members to apply export 
prohibitions  or  restrictions  in  specific  circumstances.  Article  12  of  the  WTO 
Agreement  on  Agriculture  specifies  additional  conditions  to  be  observed  by  WTO 
Members  in  such  cases.  During  the  COVID-19  pandemic,  WTO  Members  have 
resorted  to  such  measures,  which  can  also  affect  foodstuffs  purchased  for  non-
commercial humanitarian purposes. 

(8) 

Humanitarian  purchases  by  the  World  Food  Programme  should  be  exempted  from 
export  prohibitions  and  restrictions  in  view  of  the  critical  humanitarian  support 

1 

OJ L 336, 23.12.1994, p. 1 

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provided by the World Food Programme, which has become even more crucial during 
the COVID-19 pandemic. 

(9) 

In the General Council of the WTO, the Union is represented by the Commission, in 
accordance with Article 17(1) of the Treaty on European Union, 

HAS ADOPTED THIS DECISION: 

Article 1 

The position to be taken on the Union’s behalf within the General Council of the World Trade 
Organization  (the  ‘General  Council  of  the  WTO’)  in  its  December  2020  meeting,  or  at  a 
subsequent meeting in 2021, shall be the following:   

If a consensus is reached among WTO Members for exempting foodstuffs purchased by the 
World  Food Programme for non-commercial humanitarian purposes from  the application of 
export prohibitions or restrictions, the Union shall join such consensus. Minor changes to that 
draft position may be agreed to by the representatives of the Union in the General Council of 
the WTO without further decision of the Council. 

This decision is addressed to the Commission. 

Article 2 

Done at Brussels, 

For the Council 
The President 

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