Source: EURLEX
Language: en
Format: md

**Council of the**
**European Union**

**Interinstitutional File:**

**2021/0147(NLE)**

**PROPOSAL**

**Brussels, 21 June 2021**
**(OR. en)**

**10037/21**

**WTO 161**
**COASI 95**

From: Secretary-General of the European Commission, signed by Ms Martine
DEPREZ, Director

date of receipt: 21 June 2021

To: Mr Jeppe TRANHOLM-MIKKELSEN, Secretary-General of the Council
of the European Union

No. Cion doc.: COM(2021) 314 final

Subject: Proposal for a COUNCIL DECISION on the position to be adopted, on
behalf of the European Union, in the Trade Committee established by
the Free Trade Agreement between the European Union and the
Socialist Republic of Viet Nam as regards the adoption of the Rules of
Procedure for the Trade Committee

Delegations will find attached document COM(2021) 314 final.

Encl.: COM(2021) 314 final

10037/21 BK/hp
## RELEX.1.A EN

EUROPEAN

COMMISSION

Brussels, 21.6.2021
COM(2021) 314 final

2021/0147 (NLE)

Proposal for a

**COUNCIL DECISION**

**on the position to be adopted, on behalf of the European Union, in the Trade Committee**
**established by the Free Trade Agreement between the European Union and the Socialist**

**Republic of Viet Nam as regards the adoption of the Rules of Procedure for the Trade**

**Committee**

# **EN EN**

**EXPLANATORY MEMORANDUM**

**1.** **S** **UBJECT MATTER OF THE PROPOSAL**

This proposal concerns the decision establishing the position to be taken on the Union's behalf
in the Trade Committee established by the Free Trade Agreement between the European
Union and the Socialist Republic of Viet Nam (‘the Agreement’), in connection with the
envisaged adoption of the Rules of Procedure of the Trade Committee.

**2.** **C** **ONTEXT OF THE PROPOSAL**

**2.1.** **The Free Trade Agreement between the European Union and the Socialist**
**Republic of Viet Nam**

The Agreement establishes a free trade area between the Union and Viet Nam. Its objectives
are to liberalize and facilitate trade and investment between the Parties. These objectives are
part of the Parties’ broader determination to strengthen their economic, trade and investment
relations, in accordance with the objective of sustainable development and to promote trade
and investment under the Agreement in a manner mindful of high levels of environmental and
labour protection and relevant internationally recognised standards and agreements. The
Agreement entered into force on 1 August 2020.

**2.2.** **The Trade Committee**

Article 17.1 of the Agreement establishes the Trade Committee. Article 17.2 of the
Agreement establishes five specialised committees: the Committee on Trade in Goods, the
Committee on Customs, the Committee on Sanitary and Phyto-Sanitary measures, the
Committee on Investment, Trade in Services, Electronic Commerce and Government
Procurement and the Committee on Trade and Sustainable Development. Article 17.3 also
establishes two working groups: on intellectual property rights, including GIs, and on motor
vehicles and parts.

The Trade Committee is composed of representatives of the Parties and meets once a year,
unless otherwise decided by the Committee, or in urgent cases at the request of a Party. The
Trade Committee shall be co-chaired by the Minister of Industry and Trade of Viet Nam and
the Member of the European Commission responsible for Trade.

The Trade Committee, the specialised committees and the working groups are responsible for
the implementation and application of the Agreement in their respective areas.

**2.3.** **The envisaged act of the Trade Committee**

The Trade Committee may adopt its Rules of Procedure (the ‘envisaged act’), in accordance
with Article 17.1, paragraph 4, point (f) of the Agreement.

**3.** **P** **OSITION TO BE TAKEN ON THE** **U** **NION** **'** **S BEHALF**

The position to be adopted on behalf of the Union should aim at adopting the Rules of
Procedure of the Trade Committee, as provided for by the Agreement.

# EN 1 EN

**4.** **L** **EGAL 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_
’ [1]
_influencing the content of the legislation adopted by the EU legislature_ .

_4.1.2._ _Application to the present case_

The Trade Committee is a body set up by an agreement, namely the Free Trade Agreement
between the European Union and the Socialist Republic of Viet Nam.

The decision, which the Trade Committee is called upon to adopt, constitutes an act having
legal effects.

The envisaged act is binding and 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
and to international transport.

Therefore, the substantive legal basis of the proposed decision is the Treaty of the Functioning
of the European Union, and in particular its Articles 91(1), 100(2) and 207(4), first
subparagraph.

**4.3.** **Conclusion**

The legal basis of the proposed decision should be Articles 91(1), 100(2) and 207(4), first
subparagraph, TFEU in conjunction with Article 218(9) TFEU.

**5.** **P** **UBLICATION OF THE ENVISAGED ACT**

It is envisaged to publish the Decision of the Trade Committee once adopted.

1 Judgment of the Court of Justice of 7 October 2014, Germany v Council, C-399/12,
ECLI:EU:C:2014:2258, paragraphs 61 to 64.

# EN 2 EN

2021/0147 (NLE)

Proposal for a

**COUNCIL DECISION**

**on the position to be adopted, on behalf of the European Union, in the Trade Committee**
**established by the Free Trade Agreement between the European Union and the Socialist**

**Republic of Viet Nam as regards the adoption of the Rules of Procedure for the Trade**

**Committee**

**THE COUNCIL OF THE EUROPEAN UNION,**

Having regard to the Treaty on the Functioning of the European Union, and in particular
Articles 91(1), 100(2) and 207(4), first subparagraph, in conjunction with Article 218(9)
thereof,

Having regard to the proposal from the European Commission,

Whereas:

(1) The Free Trade Agreement between the European Union and the Socialist Republic of
Viet Nam (‘the Agreement’) was concluded by the Union by Council Decision (EU)
2020/753 [2] and entered into force on 1 August 2020.

(2) Pursuant to Article 17.1, paragraph 4, point (f) of the Agreement, the Trade
Committee may adopt its own rules of procedure.

(3) The Trade Committee, during its first meeting, is to adopt its own rules of procedure,
as provided for by the Agreement.

(4) It is therefore appropriate to establish the position to be taken on the Union's behalf in
the Trade Committee on the basis of the attached draft decision of the Trade
Committee on its Rules of Procedure in order to ensure the effective implementation
of the Agreement,

HAS ADOPTED THIS DECISION:

_Article 1_

The position to be adopted, on behalf of the Union, in the first meeting of the Trade
Committee established by the Free Trade Agreement between the European Union and the
Socialist Republic of Viet Nam, as regards the adoption of rules of procedure for the Trade
Committee, shall be based on the draft decision of the Trade Committee attached to this
Decision.

_Article 2_

After its adoption, the Decision of the Trade Committee shall be published in the Official
Journal of the European Union.

2 OJ L 186, 12.6.2020, p. 1.

# EN 3 EN

_Article 3_

This Decision is addressed to the Commission.

Done at Brussels,

_For the Council_

_The President_

# EN 4 EN