Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Council for Trade-Related Aspects of Intellectual Property Rights of the World Trade Organisation
Date: 2021-04-13
Institutions: Directorate-General for Trade and Economic Security, European Commission
Subjects: EU Member State, TRIPS, Uruguay Round, World Trade Organisation, intellectual property, least-developed country, multilateral agreement, trade policy

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   EUROPEAN COMMISSION  Brussels, 13.4.2021  COM(2021) 183 final 2021/0098 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Council for Trade-Related Aspects of Intellectual Property Rights of the World Trade Organisation  
 
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 Council for Trade-Related Aspects of Intellectual Property Rights of the World Trade 
Organisation  (‘TRIPS  Council’)  in  connection  with  the  envisaged  adoption  of  a  decision 
concerning the request  for an extension of the transitional period under  Article 66(1) of the 
TRIPS Agreement for Least Developed Country Members. 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Agreement on Trade-Related Aspects of Intellectual Property Rights 

The  Agreement  on  Trade-Related  Aspects  of  Intellectual  Property  Rights  (‘the  TRIPS 
Agreement’) aims, among others, to provide adequate standards and principles concerning the 
availability,  scope  and  use  of  trade-related  intellectual  property  rights,  effective  and 
appropriate  means  for  their  enforcement  and  effective  and  expeditious  procedures  for  the 
multilateral  prevention  and  settlement  of  disputes  between  governments.  The  TRIPS 
Agreement  covers  the  following  intellectual  property  rights:  copyright  and  related  rights, 
trademarks,  geographical  indications,  including  appellations  of  origin,  industrial  designs, 
patents,  including  the  protection  of  new  varieties  of  plants,  layout-designs  of  integrated 
circuits and undisclosed information. The TRIPS Agreement entered into force on 1 January 
1995.  
The European Union is a party to the TRIPS Agreement.1  

2.2. 

The TRIPS Council  

The TRIPS Council oversees the functioning of the TRIPS Agreement. In its regular sessions, 
the  TRIPS  Council  serves  as  a  forum  for  discussion  on  the  trade-related  aspects  of  the 
protection and enforcement of intellectual property rights covered by the TRIPS Agreement. 
The  TRIPS  Council  operates  under  the  general  guidance  of  the  General  Council  of  the 
WTO. It  is  open  to  all  WTO  Members  and  to  the  observers  approved  by  Members.  The 
TRIPS Council takes decisions by consensus. Pursuant to Rule 33 of the rules of procedure of 
the  TRIPS  Council2,  where  a  decision  cannot  be  arrived  at  by  consensus  in  the  TRIPS 
Council, the matter at issue shall be referred to the General Council for decision. Pursuant to 
Article  IX  of  the  Marrakesh  Agreement  establishing  the  World  Trade  Organisation  (‘the 
Marrakesh Agreement’) where the European Union exercises the right to vote it has a number 
of votes equal to that of the Member States which are Members of the WTO.  

2.3. 

The envisaged act of the TRIPS Council  

On  8-9  June  2021,  during  its  formal  session,  the  TRIPS  Council  is  to  adopt  a  decision 
regarding the request for an extension of the transitional period under TRIPS Article 66(1) for 
Least Developed Country (LDC) Members as of 1 July 2021 (‘the envisaged act’).  

From  the  entry  into  force  on  1  January  1995  of  the  Marrakesh  Agreement,  LDC  Members 
were  exempted  from  TRIPS  obligations  except  Article  3,  4  and  5  for  a  period  of  ten  years 
under Article 66(1) of the TRIPS Agreement. This Article also provides for the possibility of 
further extensions of this period upon a duly motivated request by a least-developed country 

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Council  Decision  94/800/EC  (of  22  December  1994)  concerning  the  conclusion  on  behalf  of  the 
European  Community,  as  regards  matters  within  its  competence,  of  the  agreements  reached  in  the 
Uruguay Round multilateral negotiations (1986-1994) (OJ L 336, 23.12.1994, p. 1). 
Rules of procedure for meetings of the Council for TRIPS (28 September 1995) - IP/C/1. 

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member. In 2005 and 2013, following specific requests from LDC Members, this exemption 
was extended already twice, the second time until 1 July 2021. 
Chad, on behalf of the LDC group, formally submitted a request3 on 1 October 2020 for an 
extension  of  the  transitional  period.  The  LDC  group  has  asked  for  an  extension  of  the 
transitional  period  for  ”as  long  as  the  Member  remains  in  the  category  of  least  developed 
country and for a period of twelve years from the date of entry into force of a decision by the 
UN General Assembly to exclude the Member from the least developed country category."  

The envisaged act will become binding on the parties in accordance with Article 66(1) of the 
TRIPS Agreement, which provides: “In view of the special needs and requirements of least-
developed  country  Members,  their  economic,  financial  and  administrative  constraints,  and 
their  need  for  flexibility  to  create  a  viable  technological  base,  such  Members  shall  not  be 
required to apply the provisions of this Agreement, other than Articles 3, 4 and 5, for a period 
of  10  years  from  the  date  of  application  as  defined  under  paragraph  1  of  Article 65.  The 
Council for TRIPS shall, upon duly motivated request by a least-developed country Member, 
accord extensions of this period”.  

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

As a response to the LDC Members’ request, the Commission recommends the Council of the 
European  Union  to  establish  the  following  Union  position:  LDC  Members  should  not  be 
required to apply the provisions of the TRIPS Agreement, other than Articles 3, 4 and 5, for a 
limited period of time not exceeding 10 years, or until such a date, on which they cease to be a 
LDC, whichever date is earlier. 

However, an extension of the transitional period without time limit, as proposed by the LDCs, 
would not be consistent with the objective to gradually integrate LDC Members, as members 
of the multilateral trading system, in the international IP system on the basis of the minimum 
requirements provided in the TRIPS Agreement.  

Should  Members  of  the  WTO  support  the  extension  of  the  transitional  period  under  Article 
66(1) of the TRIPS Agreement without a time limit, the Union should not stand in the way of 
reaching a consensus.  

A certain level of IPR protection and enforcement is needed also in LDC Members, because 
IPRs  are  a  catalyst  for  innovation  and  an  important  tool  for  sustainable  development.  IPR 
protection  and  enforcement  also  constitute  an  incentive  for  technology  holders’  to  promote 
the diffusion of knowledge and attract inward investment to LDC Members. A certain level of 
protection  and  enforcement  of  IPR  in  LDC  Members  also  serves  as  an  incentive  for  EU 
companies to bring their new technologies to LDC Members without fearing IP theft or other 
abuses. An extension of the transitional period without time limit would not be encouraging 
enough  for  LDC  Members  to  make  efforts  in  this  area  and  could  be  counter-productive  for 
their  competitiveness  in  the  world  trading  system.  However,  another  extension  of  the 
transitional period for the implementation of the TRIPS Agreement, other than Articles 3, 4 
and 5, is justified. LDC Members represent the most vulnerable segment of the international 
trade  community,  characterised  by  constraints  such  as  low  per  capita  income,  low  level  of 
human  development,  and  economic  and  structural  handicaps  to  growth.  The  COVID-19 
pandemic  has  further  increased  the  challenges  that  LDC  Members  face.  Therefore,  LDC 
Members  need  to  have  policy  space  and  flexibility  to  address  their  development  challenges 
and to create a viable technological base.  

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WTO Document IP/C/W/668. 

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It is also important to strive to provide that any changes in LDC Members’ laws, regulations 
and practice made during the additional transitional period cannot result in a lesser degree of 
consistency with the provisions of the TRIPS Agreement. This requirement would incentivise 
LDC  Members  to  gradually  implement  certain  provisions  of  the  TRIPS  Agreement  and 
prevent lowering the level of protection and enforcement of intellectual property rights. LDC 
Members’  efforts  to  implement  certain  provisions  of  the  TRIPS  Agreement  would  be  taken 
into  account  when  deciding  on  the  beneficiaries  of  the  technical  and  financial  cooperation 
provided  under  Article  67  of  the  TRIPS  Agreement  to  facilitate  the  implementation  of  the 
TRIPS Agreement focusing on those areas of most immediate utility. 

The  second  part  of  the  LDC  Members’  request,  i.e.  the  request  for  an  additional  period  of 
twelve years exemption from the date a least-developed country Member graduates from the 
least  developed  country  category  appears  to  go  beyond  the  scope  of  Article  66(1)  of  the 
TRIPS Agreement, as this Article only applies to the extension of the transitional period for 
the  implementation  of  certain  provisions  of  the  TRIPS  Agreement  by  LDC  Members.  The 
request would appear to amount to an exemption from the relevant provisions of the TRIPS 
Agreement, which cannot be decided by the TRIPS Council. Therefore, the request to grant an 
exemption  for  non-LDCs  as  part  of  a  TRIPS  Council  decision  under  Article  66(1)  of  the 
TRIPS Agreement cannot be supported.  

It should be noted that the request for an additional period of twelve years exemption from the 
date a least-developed country Member graduates from the least developed country category 
is included also in the communication4 on smooth transition in favour of countries graduating 
from the LDC category submitted by the mission of Chad on behalf of the LDC group on 17 
November 2020 to the General Council and is under discussion in the General Council.  

The  initiative  is  fully  consistent  with  EU  policies.  Similar  decisions  have  been  adopted 
previously. The European Union supported extending the transitional period, agreed by WTO 
Members on 11 June 2013, for LDC Members not to apply the TRIPS Agreement, other than 
Articles 3, 4 and 5, until 1 July 20215.  

LDC Members have been also granted a specific waiver regarding the implementation of the 
TRIPS Agreement provisions on pharmaceuticals. This waiver was initially due to expire on 1 
January  2016  based  on  the  Doha  Declaration  on  the  TRIPS  Agreement  and  Public  Health 
adopted on 14 November 2001. In 2015, Bangladesh, on behalf of the LDC group, requested a 
waiver of the TRIPS Agreement obligations with respect to pharmaceutical products for LDC 
Members for as long as they remain LDCs. The EU supported this request of the LDC group 
in view of the Doha Declaration on the TRIPS Agreement and Public Health and the decision 
of  the  WTO  General  Council  of  30  August  2003  on  implementation  of  paragraph  6  of  the 
Doha Declaration. Eventually the waiver was extended until  1 January 2033 or until  such a 
date on which an LDC Member ceases to be an LDC, whichever date is earlier.  

The EU’s  position on the envisaged act  is fully  consistent with  the EU’s position regarding 
the implementation of the TRIPS Agreement provisions on pharmaceuticals.  

4. 

PROCEDURAL LEGAL BASIS 

4.1. 

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 

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WT/GC/W/807. 
WTO document IP/C/64. 

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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’6. 

4.2. 

Application to the present case 

The TRIPS Council is a body set up by the Marrakesh Agreement and its Annex 1C on the 
TRIPS Agreement. 

The  act,  which  the  TRIPS  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 
66(1) of the TRIPS Agreement.  

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. 

4.3. 

Substantive legal basis 

4.3.1.  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. 

4.3.2.  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(4) TFEU. 

4.4. 

Conclusion 

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

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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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2021/0098 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the Council for Trade-
Related Aspects of Intellectual Property Rights of the World Trade Organisation 

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) 

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The Agreement establishing the World Trade Organization, and also the Agreements 
in Annexes 1, 2 and 3 to that Agreement (‘the Marrakesh Agreement’) was concluded 
by  the  Union  by  Council  Decision  94/800/EC1  and  entered  into  force  on  1  January 
1995.  

Pursuant  to  Article  66(1)  of  the  Agreement  on  the  Trade-Related  Aspects  of 
Intellectual  Property  Rights  (‘the  TRIPS  Agreement’),  included  in  Annex  1C  to  the 
Marrakesh Agreement, the Council for Trade-Related Aspects of Intellectual Property 
Rights  of  the  World  Trade  Organisation  (‘the  TRIPS  Council’)  is  to,  upon  duly 
motivated request by a least-developed country (LDC) Member, accord extensions of 
the  transitional  period  during  which  LDC  Members  are  not  required  to  apply  the 
provisions of the TRIPS Agreement, other than Articles 3, 4 and 5. 

The existing transitional period, as agreed in the Decision of the TRIPS Council of 11 
June 20132 is due to expire on 1 July 2021.  

On 1 October 2020, Chad, on behalf of the LDC group, formally submitted a request 
for an extension of the transitional period3.  

The  TRIPS  Council,  during  its  formal  session  on  8  and  9  June  2021,  is  to  adopt  a 
decision regarding the request for an extension of the transitional period under Article 
66(1) of the TRIPS Agreement for LDC Members (‘the TRIPS Council’s Decision’). 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
TRIPS Council, as the TRIPS Council’s Decision will be binding on the Union. 

LDC  Members  represent  the  most  vulnerable  segment  of  the  international  trade 
community, facing economic, financial and administrative constraints. LDC Members 
need to have policy space and flexibility to address their development challenges and 
further time to implement the TRIPS Agreement. 

Council  Decision  94/800/EC  of  22  December  1994  concerning  the  conclusion  on  behalf  of  the 
European  Community,  as  regards  matters  within  its  competence,  of  the  agreements  reached  in  the 
Uruguay Round multilateral negotiations (1986-1994) (OJ L 336, 23.12.1994, p. 1). 
IP/C/64. 
WTO Document IP/C/W/668. 

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(8) 

(9) 

A  certain  level  of  intellectual  property  rights  (IPR)  protection  and  enforcement  is 
beneficial  to  LDC  Members,  because  IPRs  are  a  catalyst  for  innovation  and  an 
important tool for sustainable development. Some LDC Members have already taken 
steps towards implementation of the TRIPS Agreement and need to be encouraged not 
to decrease the existing level of IPR protection and enforcement.  

An extension of the transitional period without a time limit, as proposed by the LDC 
group,  would  slow  down  the  process  of  gradually  integrating  LDC  Members,  as 
members of the multilateral trading system, in the international IP system on the basis 
of the minimum requirements provided in the TRIPS Agreement.  

(10)  Accordingly, it is appropriate to extend the transitional period for the implementation 
of  the  TRIPS  Agreement,  other  than  Articles  3,  4  and  5,  for  LDC  Members  for  a 
limited period of time not exceeding ten years.  

(11)  Should  Members  of  the  World  Trade  Organisation  support  the  extension  of  the 
transitional period under Article 66(1) of the TRIPS Agreement for a longer period or 
without a time limit, the Union should not stand in the way of reaching a consensus.  

(12)  The LDCs’ request for an additional period of twelve years exemption calculated from 
the date an LDC Member graduates from the LDC category appears to go beyond the 
scope  of  Article  66(1)  of  the  TRIPS  Agreement,  as  this  Article  only  applies  to  the 
extension of the transitional period for the implementation of certain provisions of the 
TRIPS Agreement by LDC Members. Therefore, the request to grant an exemption for 
non-LDC Members as part of a TRIPS Council’s Decision under Article 66(1) of the 
TRIPS Agreement should not be supported, 

HAS ADOPTED THIS DECISION: 

Article 1 

The position to  be taken on the Union's behalf in  the Council for Trade-Related Aspects  of 
Intellectual Property Rights  of the World  Trade Organisation (‘the TRIPS Council’), during 
its formal session on 8 and 9 June 2021, shall be as follows: 

(a) 

(b) 

(c) 

(d) 

LDC Members should not be required to apply the provisions of the Agreement on 
the Trade-Related Aspects of Intellectual Property Rights (‘the TRIPS Agreement’) 
other than Articles 3, 4 and 5, for a limited period of time not exceeding ten years, or 
until  such  a  date  on  which  they  cease  to  be  an  LDC  Member,  whichever  date  is 
earlier.  

Should  Members  of  the  World  Trade  Organisation  support  the  extension  of  the 
transitional period under Article 66(1) of the TRIPS Agreement for a longer period 
or  without  a  time  limit,  the  Union  should  not  stand  in  the  way  of  reaching  a 
consensus.  

LDC Members should ensure that any changes in their laws, regulations and practice 
made  during  the  additional  transitional  period  do  not  result  in  a  lesser  degree  of 
consistency with the provisions of the TRIPS Agreement. However, should Members 
of  the  World  Trade  Organisation  not  support  such  an  obligation  of  the  LDC 
Members, the Union should not stand in the way of reaching a consensus. 

The  LDC  Members’  request  for  an  additional  period  of  twelve  years  exemption 
calculated from the date an LDC Member graduates from the LDC  category should 
not  be  supported,  as  falling  outside  the  scope  of  Article  66(1)  of  the  TRIPS 
Agreement. 

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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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