Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Committee on Trade in Civil Aircraft concerning the accession of Brazil to the Agreement on Trade in Civil Aircraft
Date: 2023-04-24
Institutions: Directorate-General for Trade and Economic Security, European Commission
Subjects: Brazil, GATT, accession to an agreement, aircraft, civil aviation, international trade, multilateral agreement

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   EUROPEAN COMMISSION  Brussels, 24.4.2023  COM(2023) 211 final 2023/0110 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Committee on Trade in Civil Aircraft concerning the accession of Brazil to the Agreement on Trade in Civil Aircraft   
 
 
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  Committee  on  Trade  in  Civil  Aircraft  (‘the  Committee’)  in  connection  with  the 
envisaged  adoption  of  a  decision  of  that  Committee  on  the  accession  of  Brazil  to  the 
Agreement on Trade in Civil Aircraft. 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Agreement on Trade in Civil Aircraft 

The Agreement on Trade in Civil Aircraft (‘the Agreement’) is a plurilateral agreement within 
the framework of the WTO which aims to eliminate import duties on all aircraft, other than 
military  aircraft,  as  well  as  civil  aircraft  engines  and  their  parts  and  components,  all 
components  and  sub-assemblies  of  civil  aircraft,  and  flight  simulators  and  their  parts  and 
components. The Agreement entered into force on 1 January 1980. 
The  European  Union  (‘EU)’  is  a  party  to  the  Agreement1.  Nineteen  EU  Member  States  are 
also parties to the Agreement in their own right.2 Because the common commercial policy is a 
matter of EU exclusive competence and the EU’s WTO membership covers the territories to 
which the common commercial policy applies (i.e. the EU Member States), the Commission 
will express the position in the Committee on behalf of the Union and its Member States. 

Brazil  submitted  to  the  Committee  its  application  for  accession  to  the  Agreement  on 
14 June 2022, together with its proposed tariff commitments. 

The Committee discussed on 10 October 2022 the process for reviewing Brazil’s application 
to join the Agreement, which is the first accession request to be reviewed by WTO members 
in this Committee. 

The envisaged Council decision which is the subject of this proposal enables the Commission 
to express the position on behalf of the European Union on the accession of Brazil within the 
Committee. 

2.2. 

The Committee on Trade in Civil Aircraft 

The task of the Committee is to review the implementation of the Agreement and consult on 
developments in the civil aircraft industry to determine whether amendments are required to 
ensure continuance of free and undistorted trade. 

The Committee’s decisions are adopted by consensus. Where a decision cannot be arrived at 
by consensus, the matter at issue shall be decided by voting. 

2.3. 

The envisaged act of the Committee  

While  no  specific  date  has  been  agreed  at  the  current  moment  in  time,  the  Committee  is  to 
adopt in  the near future  a decision  regarding the  accession of Brazil to  the Agreement  (‘the 
envisaged act’).  

The  envisaged  act  would  be  adopted  by  the  Committee  on  the  basis  of  Article  9.1.3  of  the 
Agreement and point 5  of the  Guidance Note on the  Implementation  of Article 9.1.3 of the 

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Council  Decision  of  10  December  1979  concerning  the  conclusion  of  the  Multilateral  Agreements 
resulting from the 1973 to 1979 trade negotiations, OJ L 71, 17.3.1980, p. 1-2. 
Austria,  Belgium,  Bulgaria,  Denmark,  Estonia,  France,  Germany,  Greece,  Ireland,  Italy,  Latvia, 
Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Romania, Spain and Sweden. 

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Agreement.  The  latter  provides  that  “[u]pon  a  decision  by  the  Committee  agreeing  to  the 
terms of accession, the applicant government shall take all necessary steps to comply with the 
terms of its accession and, with the consent of the Committee, the applicant government can 
deposit  with  the  Director-General  of  the  WTO  an  instrument  of  accession,  which  states  the 
terms so agreed”.  

The purpose of the envisaged act is  to let  Brazil accede to  the Agreement  and enhance free 
and undistorted trade in the civil aircraft sector.  

The envisaged act will become binding on the parties in accordance with Article 9.3.1 of the 
Agreement,  which  provides  that  ‘[the]Agreement  shall  enter  into  force  […]  for  each  other 
government […] on the thirtieth day following the date of its acceptance or accession to this 
Agreement.’ 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

General Notes 

The  objective  of  this  proposal  is  to  allow  the  EU  to  join  a  possible  consensus  in  the 
Committee on the envisaged act.  

While it is  not  yet  fully  clear when  the Signatories will be able to  reach  consensus,  the EU 
position has to be established in advance by the Council pursuant to Article 218(9) TFEU. 

The  proposed  position  of  the  Union  is  to  support  the  accession  of  Brazil  to  the  Agreement. 
The Commission recommends this for the following reasons: 

Brazil’s offer 

Customs duties and other charges 

Brazil offers tariff commitments under the obligations of Article 2.1 of the Agreement to the 
Committee. Once the discussions relating to Brazil's tariff commitments are concluded within 
the Committee and the list of tariff lines reflecting these obligations is settled, Brazil would be 
ready to incorporate in due course the duty-free treatment to the referred products in its GATT 
Schedule. After Brazil’s accession procedure is completed, the Agreement will be integrated 
in Brazil’s legal order. 

Brazil already applies duty-free treatment to all the products listed in Brazil's proposed tariff 
commitments, when for use in civil aircraft. Concerning the obligations under Article 2.1.2, 
Brazil's  current  legislation  already  grants  duty-free  treatment  to  products  used  for  repairing 
aircrafts. Regarding the commitments of Article 2.2 of the Agreement, Brazil already has an 
end-use system of customs administration that provides duty-free treatment comparable to the 
treatment provided by other signatories to the Agreement which is not an impediment to trade 
nor  inconsistent  with  applicable  provisions  of  the  GATT  and  other  multilateral  agreements 
negotiated under the auspices of the GATT. 

Technical barriers to trade 

Concerning  the  obligations  under  Article  3,  regarding  Technical  Barriers  to  Trade,  Brazil 
participates  actively  in  the  discussions  of  the  Technical  Barriers  to  Trade  Committee  in  the 
WTO and does not adopt any policy contrary to the Technical Barriers to Trade Agreement. 

Government-directed procurement, mandatory sub-contracts and inducements 

Brazil's  procurement  practices,  guidelines  and  procedures  are  already  in  line  with  the 
requirements  of  the  Agreement.  As  a  general  principle,  several  provisions  of  the  Brazilian 
national  Public  Procurement  Law  -  Law  14,133/2021  -  prohibit  different  treatment  between 

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national  and  foreign  suppliers.  As  the  current  law  already  promotes  this  alignment, 
operational changes provided by the Secretariat of Management of the Ministry of Economy 
through Normative Instruction No. 10, of February 2020 ensured that even foreign companies 
not established in Brazil could access procurement opportunities. 

Trade restrictions 

Brazil  does  not  apply  quantitative  restrictions  or  import  licensing  requirements  to  restrict 
imports of civil aircraft in a manner inconsistent with applicable provisions of the GATT and 
under  other  multilateral  agreements  negotiated  under  the  auspices  of  the  GATT.  Similarly, 
there are no quantitative restrictions or export licensing requirements aimed at restricting, for 
commercial or competitive reasons, exports of civil aircraft to other Signatories in a manner 
inconsistent with applicable provisions of the GATT and under other multilateral agreements 
negotiated under the auspices of the GATT. 

Government support, export credits, and aircraft marketing 

In 2007, Brazil became a Participant to the "Sector Understanding on Export Credits for Civil 
Aircraft"  (ASU),  which  is  an  annex  to  the  Arrangement  of  Officially  Supported  Export 
Credits of the Organization for Cooperation and Economic Development (OECD). Therefore, 
the  Brazilian  official  export  credit  support  programs  strictly  follow  the  ASU  guidelines, 
meaning that they do not provide officially supported export credits in more favourable terms 
and conditions than those set out on the ASU.  

Regional and local governments 

According to the Brazilian constitution, the President of the Republic has the exclusive power 
to  conclude  international  treaties,  ad  referendum  of  the  National  Congress.  Additionally,  as 
previously  mentioned,  the  adoption  of  legislation  with  the  terms  of  the  Agreement  by  the 
Federal  Government  in  Brazil  after  the  international  ratification  or  accession  means  this 
Agreement is a binding legal instrument in the country. 

Recommendation 

Brazil’s  accession  to  the  Agreement  is  expected  to  make  a  positive  contribution  to  further 
international  opening  of  civil  aircraft  markets,  by  enlarging  the  number  of  parties  to  the 
Agreement  and  thus  encouraging  other  countries  to  accede  to  it.  The  Commission 
recommends that the offer by Brazil is accepted. 

Accordingly,  it  is  proposed  that  the  Commission  be  authorised  to  express  within  the 
Committee on Civil Aircraft the position of the Union in favour of  Brazil’s accession to the 
Agreement. 

The initiative is fully consistent with existing policy. Similar decisions were adopted for e.g. 
accessions  of  Australia  or  New  Zealand  to  another  WTO  specific  agreement,  i.e.  the 
Agreement on Government Procurement. 

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.’ 

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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’3. 

4.1.2.  Application to the present case 

The Committee is a body set up by Article 8.1 of the Agreement. 

The act which the Committee is called upon to adopt constitutes an act having legal effects. 
The envisaged act will be binding under international law in accordance with Article 9.3.1 of 
the Agreement on Trade in Civil Aircraft.  

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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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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2023/0110 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the Committee on Trade 
in Civil Aircraft concerning the accession of Brazil to the Agreement on Trade in Civil 
Aircraft 

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) 

The  Agreement  on  Trade  in  Civil  Aircraft  (‘the  Agreement’)  was  concluded  by  the 
Union by Council Decision 80/271/EEC4 and entered into force on 1 January 1980.  

Brazil  submitted  its  application  to  the  Committee  on  Trade  to  Civil  Aircraft  (‘the 
Committee’)  for  accession  to  the  Agreement  on  14 June 2022,  together  with  its 
proposed tariff commitments. 

In  view  of  those  commitments,  Brazil’s  application  for  accession  to  the  Agreement 
meets the requirements set out in the Agreement. 

Brazil’s accession to the Agreement is expected to make a positive contribution to the 
free and undistorted trade in the civil aircraft sector. 

Pursuant  to  Article 9.1.3 of the Agreement and point 5 of the Guidance  Note on the 
Implementation  of  Article  9.1.3  of  the  Agreement,  the  Committee  has  the  power  to 
take a decision agreeing to the terms of accession.  

Accordingly, it is necessary to establish the position to be taken on the Union's behalf 
within the Committee in relation to the accession of Brazil to the Agreement, 

HAS ADOPTED THIS DECISION: 

The position to  be taken on the Union's behalf  in the Committee on Trade in  Civil  Aircraft 
shall be to agree to the accession of Brazil to the Agreement on Trade in Civil Aircraft. 

Article 1 

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OJ L 71, 17.3.1980, p. 1-2. 

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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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