Proposal for a COUNCIL DECISION as regards the extension of the period of entitlement for audiovisual co-productions as provided for in Article 5 of the Protocol on Cultural Cooperation 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 part
Date: 2022-12-12
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, 12.12.2022  COM(2022) 713 final 2022/0416 (NLE)  Proposal for a COUNCIL DECISION as regards the extension of the period of entitlement for audiovisual co-productions as provided for in Article 5 of the Protocol on Cultural Cooperation 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 part  
 
EXPLANATORY MEMORANDUM 

1. 

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CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

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.  
The  Protocol  on  Cultural  Cooperation1 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 part2 ('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. 

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.  

This entitlement was established for a period of three years (from 1 July 2011 until 30 June 
2014).  Pursuant  to  Article  5(8)(b)  of  the  Protocol,  “[t]he  entitlement  will  be  renewed  for  a 
duration  of  three  years  and  shall  thereafter  be  automatically  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 that provision, the entitlement was renewed three times for another three 
years. The first renewal ran until 30 June 2017, the second one ran until 30 June 2020, and the 
third runs until 30 June 2023, no Party having terminated the entitlement. 

By Council Decision (EU) 2020/470 of 25 March 2020 as regards the extension of the period 
of entitlement for audiovisual co-productions as provided for in Article 5 of the Protocol on 
Cultural  Cooperation  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 Council had 
agreed to continue the entitlement from 1 July 2020 to 30 June 2023. 

Council Decision (EU) 2020/470  was adopted on the basis of Article 3(1) of Decision (EU) 
2015/2169, which, at the time of the adoption of Council Decision (EU) 2020/470, provided 
in  particular  that  the  Commission  is  to  provide  notice  to  the  Republic  of  Korea  of  the 
European Union’s intention  not  to  extend the period of the entitlement at  issue 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 annulled 
that  decision  considering  that  the  procedure  established  in  Article  3(1)  Decision  (EU) 
2015/2169 did not comply with Article 218 TFEU in so far as it required the Council to vote 
by  unanimity.  The  applicable  voting  rule  for  the  adoption  of  decisions  such  as  Council 
Decision (EU) 2020/470 had to be that laid down in the first subparagraph of Article 218(8) 

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2 
3 
4 

OJ L 127, 14.5.2011, p. 1418. 
OJ L 127, 14.5.2011, p. 6. 
OJ L 101, 1.4.2020, p. 1. 
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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TFEU,  namely  qualified  majority  voting  in  the  Council.  In  its  judgement,  the  Court  also 
maintained the effects of Decision (EU) 2020/470 until the grounds for annulment established 
have been remedied. 

By Council Decision (EU) 2022/2335, the requirement that the Council act by unanimity for 
the  purpose  of  deciding  on  the  continuation  of  the  entitlement  in  Article  3(1)  of  Council 
Decision (EU) 2015/2169 was deleted. 

In  order  to  remove  any  doubt  as  to  the  commitment  of  the  European  Union  regarding  the 
extension of the period of the entitlement for a duration of three years, from 1 July 2020 to 30 
June  2023,  and  thus  to  ensure  the  proper  implementation  of  the  Protocol,  a  new  decision 
should be adopted. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

In conformity with the aforementioned judgement, the legal basis for the proposed decision is 
Article  3(1)  of  Council  Decision  (EU)  2015/2169  as  amended  by  Council  Decision  (EU) 
2022/2335. 

• 

Choice of the instrument 

In  accordance  with  Article  3(1)  of  Council  Decision  (EU)  2015/2169,  the  appropriate 
instrument to agree to the extension of the entitlement is a Council decision. 

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2022/0416 (NLE) 

Proposal for a 

COUNCIL DECISION 

as regards the extension of the period of entitlement for audiovisual co-productions as 
provided for in Article 5 of the Protocol on Cultural Cooperation 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 part 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union, 

Having regard to Council Decision (EU) 2015/2169 of 1 October 2015 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,  as  amended  by  Council  Decision  (EU) 
2022/23355, and in particular Article 3(1) thereof,  

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

5 

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7 
8 

9 

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 the entitlement for 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  that  provision,  the  entitlement  was  last  extended  until  30  June  2023,  no  Party 
having terminated it. 
Council Decision (EU) 2020/4708  extended the period of entitlement for audiovisual 
co-productions  for  a  duration  of  three  years,  from  1  July  2020  to  30  June  2023.  By 
judgement  of  1  March  2022  in  case  Commission  v  Council9,  the  Court  of  Justice 

Council  Decision  (EU)  2022/2335  of  28  November  2022  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 (OJ L 309 of 30 November 2022, p6). 
OJ L 127, 14.5.2011, p. 1418. 
OJ L 127, 14.5.2011, p. 6. 
Council Decision (EU) 2020/470 of 25 March 2020 as regards the extension of the period of entitlement 
for audiovisual co-productions as provided for in Article 5 of the  Protocol on Cultural Cooperation 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 part (OJ L 101, 1.4.2020, p. 1). 
Judgment  of 
275/20, ECLI:EU:C:2022:142. 

Justice  of  1  March  2022, Commission 

the  Court  of 

v  Council, C-

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(5) 

(6) 

annulled  that  decision.  In  its  judgement,  the  Court  also  maintained  the  effects  of 
Decision  (EU)  2020/470  until  the  grounds  for  annulment  established  have  been 
remedied. 

On  28.11.2022,  the  Council  adopted  Decision  (EU)  2022/2335  amending  Decision 
(EU) 2015/216910 in conformity with that judgement. 

In  order  to  remove  any  doubt  as  to  the  commitment  of  the  Union  regarding  the 
extension  of  the  period  of  the  entitlement  for  a  duration  of  three  years,  from  1  July 
2020 to 30 June 2023, and thus to ensure the proper implementation of the Protocol, a 
new decision should be adopted on the basis of Article 3(1) of Council Decision (EU) 
2015/2169, as amended by Council Decision (EU) 2022/2335, and apply as of 1 July 
2020, in conformity with that judgement,  

HAS ADOPTED THIS DECISION:  

Article 1 

The  period  of  entitlement  for  audiovisual  co-productions  to  benefit  from  the  respective 
schemes of the Parties for the promotion of local/regional cultural content, as provided for in 
Article  5(4)  to  (7)  of  the  Protocol  on  Cultural  Cooperation 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 part, shall be extended for a duration of three  years, from 1 
July 2020 to 30 June 2023. 

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

It shall apply from 1 July 2020. 

Article 2 

Done at Brussels, 

For the Council 
The President 

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OJ L 307, 25.11.2015, p. 2. 

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