Proposal for a COUNCIL DECISION establishing the position to be taken on behalf of the European Union in the World Trade Organization’s 13th Ministerial Conference on adding the Agreement on Investment Facilitation for Development into the Agreement establishing the World Trade Organization
Date: 2024-01-11
Institutions: Directorate-General for Trade and Economic Security, European Commission
Subjects: World Trade Organisation, developing countries, international organisation, investment, least-developed country, ministerial meeting, multilateral agreement, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 11.1.2024  COM(2024) 4 final 2024/0002 (NLE)  Proposal for a COUNCIL DECISION establishing the position to be taken on behalf of the European Union in the World Trade Organization’s 13th Ministerial Conference on adding the Agreement on Investment Facilitation for Development into the Agreement establishing the World Trade Organization  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This  proposal  concerns  the  Council  decision  establishing  the  position  to  be  taken  on  the 
Union's behalf in the 13th Ministerial Conference of the World Trade Organization (‘WTO’) 
in  connection  with  the  envisaged  adoption  of  a  decision  on  adding  the  Agreement  on 
Investment Facilitation for Development (‘IFDA’) to Annex 4 to the Agreement establishing 
the World Trade Organization (‘the WTO Agreement’).  

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Agreement Establishing the World Trade Organization  

The  WTO  Agreement  aims  to  achieve  the  objectives  mentioned  in  the  preamble  to  the 
Agreement. The agreement entered into force on 1 January 1995. 
The European Union (‘EU’) is a party to the Agreement.1 All 27 EU Member States are also 
parties to the Agreement. The WTO may take decisions in accordance with the procedures set 
out in the WTO Agreement. 

2.2. 

The Ministerial Conference of the World Trade Organization 

The  Ministerial  Conference  is  the  highest  decision-making  body  of  the  WTO  and  meets  at 
least once every two years. As a matter of law and practice, decisions are taken by consensus.  

The  next  meeting  of  the  Ministerial  Conference  will  take  place  in  Abu  Dhabi,  United  Arab 
Emirates  on  26-29  February  2024.  Article  IV:2  of  the  WTO  Agreement  states  that  the 
functions  of  the  Ministerial  Conference  shall  be  conducted  by  the  General  Council  in  the 
intervals between meetings of the Ministerial Conference. 

2.3. 

The  envisaged  act  during  the  Ministerial  Conference  and  reason  for  and 
objective of the proposal 

During the WTO’s 13th Ministerial Conference (‘MC13’), a decision may be adopted to add 
the IFDA to Annex 4 to the WTO Agreement (“the envisaged act”). If the envisaged act is not 
adopted at MC13, this may take place at a later meeting of the General Council. 

Negotiations towards the IFDA were formally launched in September 2020. The Commission 
conducted the negotiations on behalf of the EU.2 The IFDA will cover the following topics: 
improving  the  transparency  and  predictability  of  investment  measures,  simplifying  and 
speeding up investment-related administrative procedures, strengthening the dialogue between 
governments and investors, and promoting the uptake by companies of responsible business 
conduct  practices,  as  well  as  preventing  and  fighting  corruption,  ensuring  special  and 
differential  treatment,  technical  assistance  and  capacity  building  for  developing  and  least-
developed countries.  

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Council  Decision  94/800/EC  of  22  December  1994  concerning  the  conclusion  on  behalf  of  the 
European  Community,  as  regard  matters  within  its  competence,  of  the  agreements  reached  in  the 
Uruguay Round of multilateral negotiations (1986-1994) OJ L 336 23.12.1994, p. 1. 
Council  Decision  10973/19  of  27  September  2019  supplementing  the  negotiating  directives  for  the 
Doha  Development  Agenda  as  regards  the  negotiations  for  a  multilateral  framework  on  investment 
facilitation (not published). 

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Negotiations were concluded on 6 July 2023.3 Because not all WTO Members participated in 
the  negotiations,  the  intention  of  the  negotiators  is  to  submit  a  request  to  the  Ministerial 
Conference to add the IFDA as a plurilateral agreement to Annex 4 to the WTO Agreement. 
After  the  request,  Article  X:9  of  the  WTO  Agreement  specifies  that  the  Ministerial 
Conference  of  the  WTO  may  decide  “exclusively  by  consensus”  to  add  an  agreement  to 
Annex 4 of the WTO Agreement. 

For  greater  clarity,  this  Decision  is  only  about  allowing  the  EU  to  join  the  consensus 
regarding  the  legal  incorporation  of  the  IFDA  to  Annex  4  to  the  WTO  Agreement.  This 
proposal does not relate to the formal acceptance of the IFDA by the Union. For that purpose, 
the Commission will issue a proposal for a Council decision concluding the IFDA pursuant to 
Article 218(6) TFEU after the IFDA has been added to Annex 4 to the WTO Agreement and 
declared open for acceptance. 

2.4. 

Consistency with existing policy provisions in the policy area 

In its Communication on a Trade Policy Review - An Open, Sustainable and Assertive Trade 
Policy,4 the Commission announced as follows: “WTO rules need to be brought into line with 
the  economic  and  trade  realities  of  the  21st  century.  In  substance,  the  priority  should  be  to 
modernise  the  rules  of  the  WTO  on  e-commerce,  investment  facilitation,  services  domestic 
regulation and on the role of the state in the economy, including on subsidies.”  

The  envisaged  act  is  fully  consistent  with  that  Communication  because  it  is  a  necessary 
procedural step under WTO rules to incorporate an agreement on investment facilitation into 
the WTO rules. 

2.5. 

Consistency with other Union policies 

The  envisaged  act  is  consistent  with  other  Union  policies,  and  notably  with  the  Union’s 
development cooperation policy. 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The objective of this proposal is to enable the EU to join a possible consensus at MC13 or at a 
later General Council on the adoption of the envisaged act.  

While it is not yet clear if, and to what extent, WTO Members will be able to reach consensus 
on  the  envisaged  act,  the  EU  position  at  MC13  has  to  be  established  in  advance  by  the 
Council pursuant to Article 218(9) TFEU.  

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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Statement  of  the  co-coordinators  of  the  WTO  structured  discussions  on  Investment  Facilitation  for 
Development, INF/IFD/W/51. 
Communication from the Commission to the European Parliament, the Council, the European economic 
and  Social  Committee  and  the  Committee  of  the  Regions  on  a  Trade  Policy  Review  -  An  Open, 
Sustainable and Assertive Trade Policy, 18 February 2021, COM(2021) 66 final. 

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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’5. 

4.1.2.  Application to the present case 

The  WTO  Ministerial  Conference  is  a  body  set  up  by  an  agreement,  namely  the  WTO 
Agreement, which according to Article IV:1 of the WTO Agreement has the authority to take 
decisions  on  all  matters  covered  under  any  of  the  multilateral  trade  agreements,  including 
decisions having legal effects. 

The envisaged acts  mentioned above constitute acts  having  legal  effects,  as they may affect 
the rights and obligations of the Union by virtue of international law. 

The  envisaged  acts  do  not  supplement  or  amend  the  institutional  framework  of  the  WTO 
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. 

The substantive legal basis of the proposed decision, therefore, 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. 

5 

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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2024/0002 (NLE) 

Proposal for a 

COUNCIL DECISION 

establishing the position to be taken on behalf of the European Union in the World 
Trade Organization’s 13th Ministerial Conference on adding the Agreement on 
Investment Facilitation for Development into the Agreement establishing the World 
Trade Organization 

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) 

The  Marrakesh  Agreement  Establishing  the  World  Trade  Organization  (‘the  WTO 
Agreement’)  was  concluded  by  the  Union  by  Council  Decision  94/800/EC  of  22 
December 19946 and entered into force on 1 January 1995.  

Pursuant  to  Article  X:9  of  the  WTO  Agreement,  the  Ministerial  Conference  of  the 
World  Trade  Organization  (‘WTO’)  may  adopt  a  decision  by  consensus  to  add  an 
agreement to Annex 4 of the WTO Agreement. 

The  WTO  Ministerial  Conference,  during  its  13th  meeting  on  26-29  February  2024, 
may  adopt  a  decision  on  adding  the  Agreement  on  Investment  Facilitation  for 
Development to Annex 4 to the WTO Agreement. 

It is appropriate to establish the position to be taken on the Union's behalf in the WTO 
Ministerial Conference, as the decisions are binding on the Union. 

Negotiations towards an Agreement on Investment Facilitation for Development were 
formally launched in September 2020. The Commission conducted the negotiations on 
behalf  of  the  EU.  The  negotiations  were  concluded  on  6  July  2023.  Because  not  all 
WTO  Members  participated  in  the  negotiations,  the  intention  of  the  WTO  Members 
participating  in  the  negotiations  is  to  submit  a  request  to  add  the  Agreement  on 
Investment Facilitation Agreement as a plurilateral agreement to Annex 4 of the WTO 
Agreement.  The  Union  should  participate  in  that  request  as  a  preparatory  step  to  a 
possible decision of the Ministerial Conference, 

HAS ADOPTED THIS DECISION: 

Article 1 
The position to be taken on the Union's behalf in the 13th WTO Ministerial Conference shall 
be: 

To join the consensus reached among WTO Members with a view to  adding the Agreement 
on Investment Facilitation for Development to Annex 4 to the WTO Agreement. 

6 

OJ L 336, 23.12.1994, p. 1. 

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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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