Proposal for a COUNCIL DECISION amending Decision (EU) 2015/2169 on the conclusion of the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part
Date: 2022-09-02
Institutions: Directorate-General for Communications Networks, Content and Technology, European Commission
Subjects: South Korea, audiovisual co-production, cultural cooperation, free-trade agreement, protocol to an agreement, ratification of an agreement, trade agreement (EU)

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   EUROPEAN COMMISSION  Brussels, 2.9.2022  COM(2022) 435 final 2022/0257 (NLE)  Proposal for a COUNCIL DECISION amending Decision (EU) 2015/2169 on the conclusion of the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part  
 
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Reasons for and objectives of the proposal 

EXPLANATORY MEMORANDUM 

On 1 October 2015, the Council adopted Decision (EU) 2015/2169 on the conclusion  of the 
Free Trade Agreement between the European Union and its Member States, of the one part, 
and the Republic of Korea, of the other part.1  
The  Protocol  on  Cultural  Cooperation2 annexed  to  the  Free  Trade  Agreement  between  the 
European  Union  and  its  Member  States,  of  the  one  part,  and  the  Republic  of  Korea,  of  the 
other part3 ('the Protocol'), sets up in Article 1 the framework within which the Parties are to 
cooperate  for  the  facilitation  of  exchanges  regarding  cultural  activities,  goods  and  services, 
including in the audiovisual sector.  

The  Protocol  includes  provisions  on  an  entitlement  to  audiovisual  co‐productions  to  benefit 
from the respective schemes. 

Pursuant  to  Article  5(8)(b)  of  the  Protocol,  following  the  initial  period  of  three  years  the 
entitlement will be renewed for further successive periods of the same duration, unless a Party 
terminates the entitlement by giving notice in writing at least three months before the expiry 
of the initial or any subsequent period. 

In accordance with Article 3(1) of Decision (EU) 2015/2169 as it stands, the Commission is 
to provide notice to the Republic of Korea of the Union's intention not to extend the period of 
entitlement to co-production pursuant to Article 5 of the Protocol following the procedure set 
out in Article 5(8)(b) of the Protocol unless, on a proposal from the Commission, the Council 
unanimously  agrees  four months before the end of the period of entitlement to  continue the 
entitlement. 
By judgement of 1 March 2022 in case Commission v Council4, the Court of Justice decided 
that the procedure established in Article 3(1) of Council Decision (EU) 2015/2169 does not 
comply with Article 218 TFEU in so far as it requires the Council to vote by unanimity. The 
applicable  voting  rule  for  the  adoption  of  decisions  as  those  envisaged  by  Article  3(1)  of 
Council Decision (EU) 2015/2169 had to be that laid down in the first subparagraph of Article 
218(8) TFEU, namely qualified majority voting in the Council. 

It  is  therefore  required  to  delete  the  requirement  that  the  Council  act  by  unanimity  for  the 
purpose of deciding on the continuation of the entitlement.  

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LEGAL BASIS 

Legal basis 

The proposal amends Council Decision (EU) 2015/2169 and should therefore be adopted on 
the  same  legal  basis,  namely  Articles  91,  100(2),  167(3)  and  207  in  conjunction  with 
218(6)(a)(v)  of  the  Treaty  on  the  Functioning  of  the  European  Union  (TFEU),  the  Council 
acting by  qualified majority after obtaining the consent of the Parliament. 

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OJ L 307, 25.11.2015, p.2. 
OJ L 127, 14.5.2011, p. 1418. 
OJ L 127, 14.5.2011, p. 6. 
Judgment  of 
275/20, ECLI:EU:C:2022:142. 

the  Court  of 

Justice  of  1  March  2022, Commission 

v  Council, C-

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Choice of the instrument 

The proposal amends Council Decision (EU) 2015/2169. 

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2022/0257 (NLE) 

Proposal for a 

COUNCIL DECISION 

amending Decision (EU) 2015/2169 on the conclusion of the Free Trade Agreement 
between the European Union and its Member States, of the one part, and the Republic 
of Korea, of the other part 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 91, Article 100(2), Article 167(3) and Article 207 in conjunction with Article 218(6), 
point (a)(v) thereof, 

Having regard to the proposal from the European Commission, 

Having regard to the consent of the European Parliament, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

On 1 October 2015, the Council adopted Decision (EU) 2015/2169 on the conclusion 
of the Free Trade Agreement between the European Union and its Member States, of 
the one part, and the Republic of Korea, of the other part5.  
The Protocol on Cultural Cooperation6 annexed to the Free Trade Agreement between 
the European Union and its Member States, of the one part, and the Republic of Korea, 
of the other part7 ('the Protocol'), sets up in Article 1 the framework within which the 
Parties are to  cooperate for the facilitation of exchanges regarding  cultural activities, 
goods and services, including in the audiovisual sector.  

The  Protocol  includes  provisions  on  an  entitlement  to  audiovisual  co‐productions  to 
benefit from the respective schemes. 

Pursuant to Article 5(8), point (b), of the Protocol, following the initial period of three 
years  the  entitlement  will  be  renewed  for  further  successive  periods  of  the  same 
duration, unless a Party terminates the entitlement by giving notice in writing at least 
three months before the expiry of the initial or any subsequent period. 

In  accordance  with  Article  3(1)  of  Decision  (EU)  2015/2169,  the  Commission  is  to 
provide notice to Korea of the Union's intention not to extend the period of entitlement 
to co-production pursuant to Article 5 of the Protocol following the procedure set out 
in Article 5(8), point (b), of the Protocol unless, on a proposal from the Commission, 
the  Council  unanimously  agrees  four  months  before  the  end  of  the  period  of 
entitlement to continue the entitlement. 

(6) 

By judgement of 1 March 2022 in  case  Commission v Council8, the Court of Justice 
decided  that  the  procedure  established  in  Article  3(1)  of  Decision  (EU)  2015/2169 

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6 
7 
8 

OJ L 307, 25.11.2015, p. 2. 
OJ L 127, 14.5.2011, p. 1418. 
OJ L 127, 14.5.2011, p. 6. 
Judgment  of 
275/20, ECLI:EU:C:2022:142. 

the  Court  of 

Justice  of  1  March  2022, Commission 

v  Council, C-

EN 

3 

  EN 

                                                 
does not comply with Article 218 TFEU in so far as it requires the Council to vote by 
unanimity. The applicable voting rule for the adoption of decisions as those envisaged 
by Article 3(1) of Decision (EU) 2015/2169 had to be that laid down in Article 218(8), 
first subparagraph, TFEU, namely qualified majority voting in the Council.  

(7) 

(8) 

Therefore,  the  requirement  that  the  Council  act  by  unanimity  for  the  purpose  of 
deciding on the continuation of the entitlement should be deleted. 

In  accordance  with  Article  266  TFEU,  in  order  to  implement  the  judgement 
expeditiously, this Decision should enter into force on the day of its adoption, 

HAS ADOPTED THIS DECISION:  

In Article 3(1) of Decision (EU) 2015/2169, the third sentence is deleted. 

Article 1 

This Decision shall enter into force on the day of its adoption. 

Article 2 

Done at Brussels, 

For the Council 
The President 

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