Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the International Cocoa Council
Date: 2021-04-13
Institutions: Directorate-General for International Partnerships, European Commission
Subjects: cocoa, commodity agreement, international organisation, renewal of an agreement, trade policy

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   EUROPEAN COMMISSION  Brussels, 13.4.2021  COM(2021) 175 final 2021/0094 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the International Cocoa Council  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns the decision establishing the position to be taken on the Union's behalf 
in  the  International  Cocoa Organization’s (hereafter: ‘ICCO’)  1  International  Cocoa Council 
(hereafter: ‘ICCO Council’) in connection with the envisaged adoption of the extension of the 
International Cocoa Agreement (ICA, 2010). 2 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The International Cocoa Agreement (ICA, 2010) 

The  International  Cocoa  Agreement  (ICA,  2010)  (hereafter  ‘the  ICA’  or  ‘the  Agreement’) 
aims  to  ensure  enhanced  international  cooperation  in  connection  with  world  cocoa  matters 
and related issues, provide a forum for intergovernmental consultations on cocoa and on ways 
to  improve  the  world  cocoa  economy,  to  facilitate  trade  by  collecting  and  providing 
information on the world cocoa market and to encourage increased demand for cocoa. 

The  ICA entered into force on  1 October 2012 for a period of ten  years until  30 September 
2022 (Article 62(1) ICA). 

The European Union is a party to the ICA3. 

2.2. 

The International Cocoa Council 

As  per  Article  6(1)  of  the  ICA,  the  International  Cocoa  Council  shall  consist  of  all  the 
members of the Organization. As per Article 7 of the ICA, the Council shall exercise all such 
powers and perform or arrange for the performance of all such functions as are necessary to 
carry out the express provisions of the ICA. 

As a general rule, the ICCO Council holds one regular session in each half of the cocoa year 
but has the possibility to meet in special session (Article 9 (1)(2) ICA). Article 12 of the ICA 
stipulates that all decisions of the ICCO Council are in principle by consensus. In the absence 
of consensus, decisions are made by a special vote according to the procedure as laid down in 
Article  12(1)  ICA.  Article  10  and  11  ICA  provide  for  a  specific  distribution  of  votes  and 
voting procedure between the Organization’s exporting and importing members. 

2.3. 

The envisaged act of the International Cocoa Council 

In September 2020, during its 102nd session, the ICCO Council recommended to extend the 
ICA  beyond  its  current  expiration  date.  This  would  allow  for  a  substantial  revision  to  be 
adopted in the future. The ICCO Council is to decide on the extension of the agreement, as 
per Article 62(4) ICA, which stipulates that the Council may extend the Agreement in whole 
or in part for two periods not exceeding two cocoa years each. 

1 
2 
3 

Established by the 1972 Cocoa Agreement: United Nations, Treaty Series , vol. 882, p. 67. 
United Nations, Treaty Series, vol. 2871. 
Council Decision of 26 March 2012 on the conclusion of the International Cocoa Agreement 2010, OJ 
12.04.2012, L102, p. 1; Council Decision of 17 May 2011 on the  signing, on behalf of  the European 
Union, and provisional application of the International Cocoa Agreement 2010; OJ L259 of 04.10.2011, 
p.7. 

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On  22-23  April  2021,  during  its  103rd  session,  the  ICCO  Council  is  to  adopt  a  decision 
regarding  the  extension  of  the  ICA  2010  (‘the  envisaged  act’).  This  decision  may  be 
postponed to the next sessions of the Council. 

The purpose of the  envisaged act  is  to approve the extension  of the  ICA 2010 in  the  ICCO 
Council. The extension of the ICA 2010 will give the appropriate time to ICCO Members to 
conduct the negotiations on the revision of the ICA. 

The envisaged act will become binding on the parties in accordance with Article 12(3) ICA, 
which stipulates that Members are committed to accept as binding all decisions of the Council 
under the provisions of the Agreement. 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The purpose of this proposal is to seek the Council’s authorisation to the Commission to vote, 
on behalf of the Union, in favour of the extension of ICA within the ICCO Council. 

Extending  the  ICA  for  a  maximum  of  four  years  will  give  the  appropriate  time  to  ICCO 
Members  to  undergo  a  substantial  revision  that  would  focus  on  the  modernisation  and 
simplification of the Agreement. 

The negotiations to partially review the ICA will be opened at the 103rd session of the ICCO 
Council  in  April  2021.  The  need  to  extend  will  be  assessed  against  progress  in  the 
negotiations, to allow sufficient time to partially review the ICA. 

Currently,  the  EU's  participation  in  the  ICCO  is  beneficial  both  to  the  Union  and  to  other 
ICCO Member states and the ICA can be extended as it is. Extending the agreement beyond 
2022 and working in parallel in a separate procedure on modernising the Agreement will lead 
to a reengagement of Members and a discussion on the relevance of the ICCO to meet current 
challenges. The possible revision of the  ICA after 2022 would potentially increase its value 
added  and  the  relevance  of  its  work  and  possibly  attract  more  interest  in  the  ICCO.  An 
extension of the Agreement  is therefore in the interest of the Union. 

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.’ 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’4. 

4.1.2.  Application to the present case 

The  ICCO  Council  is  a  body  set  up  by  an  agreement,  namely  the  International  Cocoa 
Agreement 2010. 

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Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

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The  act  which  the  ICCO  Council  is  called  upon  to  adopt  constitutes  an  act  having  legal 
effects. The envisaged act will be binding under international law in accordance with Article 
12(3) and Article 62(4) of the ICA 2010. 

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 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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2021/0094 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the International Cocoa 
Council 

THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

The  International  Cocoa  Agreement  2010  (‘the  Agreement’)  was  concluded  by  the 
Union by Council Decision 2012/189/EU5 and entered into force on 1 October 2012. 

Pursuant  to  Article  62(1)  of  the  Agreement,  the  Agreement  remains  in  force  until 
30 September 2022, unless extended. 

Pursuant  to  Article  7(1)  of  the  Agreement,  the  International  Cocoa  Council  of  the 
International Cocoa Organization (‘the ICCO Council’) is to exercise all such powers 
and perform or arrange for the performance of all such functions as are necessary to 
carry  out  the  express  provisions  of  the  Agreement.  Pursuant  to  Article  62(4)  of  the 
Agreement,  the  ICCO  Council  may  adopt  a  decision  on  the  extension  of  the 
Agreement  beyond  its  current  expiry  date  ‘for  two  periods  not  exceeding  two  cocoa 
years  each’,  that  is,  until  30  September  2024  for  the  first  period  and  until  30 
September 2026 for the second period. 
The  ICCO  Council,  during  its  103rd  session  on  22  and  23  April  2021,  is  to  adopt  a 
decision on the extension of the Agreement. This decision may be postponed to a later 
date. 

It is appropriate to establish the position to be taken on the Union's behalf in the ICCO 
Council,  as  the  ICCO  Council’s  decision  on  the  extension  of  the  Agreement  will  be 
binding on the Union. 

It is in the Union's interests to continue to participate within the ICA, considering the 
importance of the cocoa sector for a number of Member States and for the economy of 
the Union. 

Extending the Agreement for a maximum of four years should give the ICCO Council 
members  the  appropriate  time  to  undergo  a  substantial  revision  in  the  future  that 
would focus on the modernisation and simplification of the Agreement”.  

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Council  Decision  2012/189/EU  of  26 March  2012  on  the  conclusion  of  the  International  Cocoa 
Agreement 2010 (OJ L102, 12.4.2012, p. 1). 

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HAS ADOPTED THIS DECISION: 

Article 1 

The position to be taken on the Union's behalf in the 103rd session of the International Cocoa 
Council of the International Cocoa Organization, or in subsequent sessions, shall be to vote in 
favour  of  the  extension  of  the  International  Cocoa  Agreement  2010  for  two  periods  not 
exceeding two cocoa years each, that is until 30 September 2024 for the first period and until 
30 September 2026 for the second period.  

This Decision is addressed to the Commission. 

Article 2 

Done at Brussels, 

For the Council 
The President 

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