Explanatory Memorandum to COM(2022)446 - EU position in the Trade Committee of the Free Trade Agreement with Korea as regards the amendment of the Annexes 10-A and 10-B of the Agreement - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)446 - EU position in the Trade Committee of the Free Trade Agreement with Korea as regards the amendment of the Annexes 10-A and ... |
|---|---|
| source | COM(2022)446  |
| date | 09-09-2022 |
1. Subject matter of the proposal
This proposal concerns the decision on 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 its Member States, of the one part, and the Republic of Korea (‘Korea’), of the other part 1 , (‘the Agreement’, the parties to which are referred to as ‘the Parties’) in connection with the envisaged adoption of the amendment of Annexes 10-A and 10-B (‘the Amendment’) of the Agreement.
2. Context of the proposal
2.1.The EU-Korea Free Trade Agreement
The Agreement is the European Union’s first new generation trade agreement and the first concluded with an Asian country. The aim of the Agreement is to boost bilateral trade and economic growth in both the EU and Korea.
The Agreement has been provisionally applied since 1 July 2011 2 and entered into force on 13 December 2015.
2.2.The Trade Committee
Article 15.1 of the Agreement establishes the Trade Committee. Pursuant to Article 15.1.4(c) of the Agreement, the Trade Committee may consider amendments to the Agreement or amend provisions of the Agreement in cases specifically provided for in the Agreement. Article 15.5.2 of the Agreement provides that a decision of the Trade Committee to amend the Annexes, Appendices, Protocols and Notes to the Agreement may be adopted by the Parties, subject to their respective applicable legal requirements and procedures.
The Agreement establishes the rules on geographical indications under Articles 10.18-10.26. Based on Article 10.24 of the Agreement, the European Union and Korea agree to add geographical indications to be protected to the Annexes 10-A and 10-B in accordance with the procedure set out in Article 10.25.
Pursuant to Article 10.25.1 the Working Group on Geographical Indications (‘GI Working Group’), which is established pursuant to Article 15.3.1(g) under the auspices of the Trade Committee, may make recommendations and adopt decisions by consensus. Pursuant to Article 15.3.5 of the Agreement and Article 5.3 of the Rules of Procedure of the Working Group on Geographical Indications 3 , the Trade Committee may undertake the task assigned to the GI Working Group and amend Annexes 10-A and 10-B pursuant to Article 15.5.2 of the Agreement.
2.3.The envisaged act of the Trade Committee
On 25 November 2021, in the framework of the 8th GI Working Group meeting, the Parties reached an agreement to extend the list of geographical indications (GIs) protected in the Annexes 10-A and 10-B of the Agreement. The Trade Committee, pursuant to Article 15.5.2 of the Agreement, may adopt a decision to amend Annexes 10-A and 10-B (‘the envisaged act’).
The amendment of Annexes 10-A and 10-B consists of, inter alia, the update of legislative references, the removal of those geographical indications which are no longer protected in the EU, the modification of certain geographical indications, in particular where the name has changed, and the enlargement of the number of geographical indications protected by the Annexes of the Agreement by adding 43 European Union GIs and 41 Korean GIs.
3. Position to be taken on the Union's behalf
The proposed Council Decision establishes the position to be adopted on the Union’s behalf in the Trade Committee regarding the amendment of Annexes 10-A and 10-B. The position shall be based on the draft Decision of the Trade Committee attached as Annex to the proposed Council Decision
The Treaties bestow on the Union an exclusive competence for the common commercial policy, which includes the Union's autonomous trade policy as well as the conclusion of international trade agreements. The envisaged act implements the Agreement and the adoption of the envisaged act fits the objectives of the Union trade policy.
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’. 4
4.1.2.Application to the present case
The Trade Committee is a body set up by the Agreement. The decision, which the Trade 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 15.5.2 of the EU-Korea Free Trade Agreement.
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 i first subparagraph TFEU, in conjunction with Article 218(9) TFEU.
5. Publication of the envisaged act
As the act of the Trade Committee will amend the Annexes 10-A and 10-B of the Agreement, it is appropriate to publish it in the Official Journal of the European Union after its adoption.