Proposal for a COUNCIL DECISION establishing the position to be taken on behalf of the European Union in the World Trade Organization on adding the Agreement on Electronic Commerce into the Agreement establishing the World Trade Organization
Date: 2025-02-06
Institutions: Directorate-General for Trade and Economic Security, European Commission
Subjects: World Trade Organisation, electronic commerce, international trade, multilateral agreement, trade agreement

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   EUROPEAN COMMISSION  Brussels, 6.2.2025  COM(2025) 33 final 2025/0015 (NLE)  Proposal for a COUNCIL DECISION establishing the position to be taken on behalf of the European Union in the World Trade Organization on adding the Agreement on Electronic Commerce 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  at  the  World  Trade  Organization  (‘WTO’)  in  connection  with  the  envisaged 
adoption of a decision on adding the Agreement on Electronic Commerce 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 General Council of the World Trade Organization 

The General Council is composed of representatives of all Members, meeting regularly. In the 
intervals  between  sessions  of  the  Ministerial  Conference,  it  performs  the  functions  of  the 
Ministerial Conference, as well as those assigned to it under the WTO Agreement. 

2.3. 

Reason for and objective of the proposal 

Negotiations towards the Agreement on Electronic Commerce were launched in January 2019 
when the WTO Joint Initiative on Electronic Commerce (‘e-commerce JSI’) was established. 
The  negotiations  focused  on  establishing  a  set  of  basic  international  trade  rules  governing 
digital trade that will promote and facilitate digital transactions. The Commission conducted 
the negotiations on behalf of the EU.2 

On  26  July  2024,  after  five  years  of  negotiation,  the  participants  of  the  e-commerce  JSI 
reached  a  stabilised  text  of  the  Agreement  on  Electronic  Commerce3.  This  comprehensive 
agreement covers a wide range of digital trade disciplines and, once integrated into the WTO 
legal  framework,  will  represent  the  first  set  of  global  rules  governing  digital  trade.  The 
Agreement on Electronic Commerce comprises: (1) trade facilitation disciplines that can lead 
to  more  seamless  digital  trade  both  within  countries  and  across  borders  (e.g.,  provisions  on 
paperless trading, electronic contracts, electronic authentication and electronic signatures); (2) 
provisions to improve trust in the digital trade environment for both consumers and businesses 
(e.g., provisions on unsolicited commercial electronic messages, online consumer protection, 
cybersecurity,  or  open  internet  access);  and  (3)  provisions  leading  to  a  more  reliable 
international  digital  trade  environment,  facilitating  consumers’  and  companies’  continued 
access  to  the  internet  and  electronic  services  at  affordable  prices  (e.g.,  provisions  on 

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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  8993/19  of  21  May  2019  supplementing  the  negotiating  directives  for  the  Doha 
Development  Agenda  regarding  the  plurilateral  negotiations  of  rules  and  commitments  on  electronic 
commerce. 
Communication by the Joint Statement Initiative on Electronic Commerce, World Trade Organization 
(July  26,  2024),  https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/INF/ECOM/87.pdf

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electronic  payments  or  telecommunications  services).  The  Agreement  also  includes  a 
permanent  prohibition  of  customs  duties  on  electronic  transmissions,  which  is  of  great 
commercial  importance  and  is  a  key  priority  for  the  EU’s  industry.  Finally,  the  Agreement 
includes  a  development  component,  aiming  to  enable  and  facilitate  the  participation  of 
consumers and companies from developing countries in digital trade.  

All the provisions contained in the Agreement are consistent with the EU acquis and will not 
require any implementation effort from the EU as they are already fully provided for in EU 
and Member States’ law.  

The Agreement on Electronic Commerce is set to become part of the WTO legal framework 
as  a  plurilateral  agreement,  formally  appended  to  Annex  4  of  the  WTO  Agreement. 
Participating WTO Members plan to submit a formal request to the WTO General Council by 
February 2025, seeking to incorporate the Agreement on Electronic Commerce under Annex 
4  in  accordance  with  Article  X:9  of  the  WTO  Agreement.  Article  X:9  mandates  that  any 
addition to Annex 4 requires an "exclusively by consensus" decision by the General Council. 

For  greater  clarity,  this  Decision  is  only  about  allowing  the  EU  to  join  the  consensus 
regarding  the  legal  incorporation  of  the  Agreement  on  Electronic  Commerce  to  Annex  4  to 
the WTO Agreement. This proposal does not relate to the formal acceptance of the Agreement 
on  Electronic  Commerce  by  the  Union.  For  that  purpose,  the  Commission  will  issue  a 
proposal for a Council decision concluding the Agreement on Electronic Commerce pursuant 
to  Article  218(6)  TFEU  after  it  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 the Agreement on Electronic Commerce 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 
internal market and development cooperation policies. 

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 the General 
Council of the WTO 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 has to be established in advance by the Council pursuant 
to Article 218(9) TFEU.  

4 

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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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.’ 

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  General  Council  of  the  WTO  is  a  body  set  up  by  an  agreement,  namely  the  WTO 
Agreement, which according to Article IV:2 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. 

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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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2025/0015 (NLE) 

Proposal for a 

COUNCIL DECISION 

establishing the position to be taken on behalf of the European Union in the World 
Trade Organization on adding the Agreement on Electronic Commerce 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, 

The European Data Protection Supervisor was consulted in accordance with Article 42(1) of 
Regulation (EU) 2018/1725 and delivered an opinion on [date of the opinion], 

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  General  Council  of  the  World 
Trade Organization (‘WTO’) may adopt a decision by consensus to add an agreement 
to Annex 4 of the WTO Agreement. 

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

Negotiations towards an Agreement on Electronic Commerce were formally launched 
in  January  2019.  The  Commission  conducted  the  negotiations  on  behalf  of  the  EU. 
The  participating  WTO  Members  reached  a  stabilised  text  of  the  Agreement  on 
Electronic Commerce on 26 July 2024.  

The WTO Members participating in the negotiations on the Agreement on Electronic 
Commerce aim to submit a formal request to the General Council of the WTO seeking 
to incorporate the Agreement on Electronic Commerce under Annex 4 in accordance 
with Article X:9 of the WTO Agreement. The Union should participate in that request 
as a preparatory step to a possible decision of the General Council, 

HAS ADOPTED THIS DECISION: 

The position to be taken on the Union's behalf at the General Council of the WTO shall be: 

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OJ L 336, 23.12.1994, p. 1. 

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To join the consensus reached among WTO Members with a view to  adding the Agreement 
on Electronic Commerce to Annex 4 to the WTO Agreement. 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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