EUROPEAN COMMISSION

Brussels, 20.10.2021

COM(2021) 637 final

2021/0330(NLE)

Proposal for a

COUNCIL DECISION

on the position to be taken on behalf of the European Union in the Special Committee on Customs and Trade Facilitation and in the Special Committee on Geographical Indications and Trade in Wines and Spirits established by the Economic Partnership Agreement between the European Union and its Member States, of the one part, and the SADC EPA States, of the other part, as regards the adoption of the Rules of Procedure for the Special Committee on Customs and Trade Facilitation and of the Rules of Procedure of the Special Committee on Geographical Indications and Trade in Wines and Spirits, respectively

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 Special Committee on Customs and Trade Facilitation and in the Special Committee on Geographical Indications and Trade in Wines and Spirits set up by the Economic Partnership Agreement between the European Union and its Member States, of the one part, and the Southern African Development Community (‘SADC’) EPA States, of the other part, in connection with the envisaged adoption of the Rules of Procedure of the Special Committee on Customs and Trade Facilitation and of the Rules of Procedure of the Special Committee on Geographical Indications and Trade in Wines and Spirits, respectively.

2.Context of the proposal

2.1.The Economic Partnership Agreement between the European Union and its Member States, of the one part, and the SADC EPA States, of the other part

The Economic Partnership Agreement between the European Union and its Member States, of the one part, and the SADC EPA States, of the other part (‘the Agreement’) aims to:

(a)contribute to the reduction and eradication of poverty through the establishment of a trade partnership consistent with the objective of sustainable development, the MDGs and the Cotonou Agreement;

(b)promote regional integration, economic cooperation and good governance to establish and implement an effective, predictable and transparent regional regulatory framework for trade and investment between the Parties and among the SADC EPA States;

(c)promote the gradual integration of the SADC EPA States into the world economy in conformity with their political choices and development priorities;

(d)improve the SADC EPA States' capacity in trade policy and trade-related issues;

(e)support the conditions for increasing investment and private sector initiatives and enhancing supply capacity, competitiveness and economic growth in the SADC EPA States; and

(f)strengthen the existing relations between the Parties on the basis of solidarity and mutual interest.

The Agreement is provisionally applied between the European Union and its Member States, of the one part, and Botswana, Lesotho, Namibia, Eswatini and South Africa, of the other part, from 10 October 2016, and between the European Union and its Member States, of the one part, and Mozambique, of the other part, from 4 February 2018.

2.2.The Special Committee on Customs and Trade Facilitation and the Special Committee on Geographical Indications and Trade in Wine and Spirits

Article 50 of the Agreement establishes the Special Committee on Customs and Trade Facilitation and provides that its functions shall include “determining its own rules of procedures” (2)(f).

Article 13 of the Protocol 3 “Geographical indications and trade in wines and spirits” to the Agreement establishes the Special Committee on Geographical Indications and Trade in Wines and Spirits and provides that “the Special Committee shall determine its own rules of procedure” (5).

2.3.The envisaged acts of the Special Committee on Customs and Trade Facilitation and of the Special Committee on Geographical Indications and Trade in Wines and Spirits

The purpose of the envisaged acts is to establish the Rules of Procedure of the Special Committee on Customs and Trade Facilitation and the Rules of Procedure of the Special Committee on Geographical Indications and Trade in Wines and Spirits, respectively.

3.Position to be taken on the Union's behalf

This proposal for a Council Decision establishes the position to be taken on the Union's behalf in the Special Committee for Geographical Indications and Trade in Wines and Spirits and in the Special Committee on Customs and Trade Facilitation set up by the EU-SADC EPA with regard to the Rules of Procedure of the Special Committee on Geographical Indications and Trade in Wines and Spirits and of the Special Committee on Customs and Trade Facilitation, respectively.

The Parties to the Agreement discussed these rules of procedures and agreed that, subject to the EU's decision making procedures, these should be adopted at the subsequent meetings of the Special Committee on Customs and Trade Facilitation and of the Special Committee on Geographical Indications and Trade in Wines and Spirits.

The substance of the attached rules of procedure is very similar to that of rules of procedure of other Economic Partnership Agreements or other trade agreements.

Rules of procedure are essential for completing the institutional framework of the Agreement and hence for ensuring a smooth implementation of the Agreement.

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’. Finally, the notion of ‘acts having legal effects’ also includes acts of an organisational nature that influence the way in which decisions are made within the body, for instance if a body with decision-making powers adopts or modifies its rules of procedure.

4.1.2.Application to the present case

The Special Committee on Geographical Indications and Trade in Wines and Spirits and the Special Committee on Customs and Trade Facilitation are bodies set up by an agreement, namely the EU-SADC EPA.

The respective acts which the two committees are called upon to adopt constitute acts having legal effects because they are acts of an organisational nature that influence the way in which decisions are made within the body. The envisaged act will be binding under international law in accordance with Articles 50 of the Agreement and Article 13 of the Protocol 3 to the Agreement, respectively.

The envisaged acts do 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(4), first subparagraph, of the TFEU.

4.3.Conclusion

The legal basis of the proposed decision should be Article 207(4), first subparagparh, of the TFEU, in conjunction with Article 218(9) TFEU.

5.Publication of the envisaged act

As the acts of the Special Committee on Geographical Indications and Trade in Wines and Spirits and the Special Committee on Customs and Trade Facilitation will amend the respective rules of procedure, it is appropriate to publish it in the Official Journal of the European Union after its adoption.

2021/0330 (NLE)

Proposal for a

COUNCIL DECISION

on the position to be taken on behalf of the European Union in the Special Committee on Customs and Trade Facilitation and in the Special Committee on Geographical Indications and Trade in Wines and Spirits established by the Economic Partnership Agreement between the European Union and its Member States, of the one part, and the SADC EPA States, of the other part, as regards the adoption of the Rules of Procedure for the Special Committee on Customs and Trade Facilitation and of the Rules of Procedure of the Special Committee on Geographical Indications and Trade in Wines and Spirits, respectively

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)The Economic Partnership Agreement between the European Union and its Member States, of the one part, and the Southern African Development Community (‘SADC’) EPA States, of the other part, was signed by the European Union and its Member States on 10 June 2016 1 (‘the Agreement’). It is provisionally applied between the European Union and its Member States, of the one part, and Botswana, Lesotho, Namibia, Eswatini and South Africa, of the other part, from 10 October 2016, and between the European Union and its Member States, of the one part, and Mozambique, of the other part, from 4 February 2018.

(2)Pursuant to Article 50(1) of the Agreement, the Special Committee on Customs and Trade Facilitation is established.

(3)Pursuant to Article 13(1) of the Protocol 3 to the Agreement, the Special Committee on Geographical Indications and Trade in Wines and Spirits is established.

(4)Pursuant to Article 50(2)(f) of the Agreement, the Special Committee on Customs and Trade Facilitation is to determine its Rules of Procedures.

(5)Pursuant to Article 13(5) of Protocol 3 to the Agreement, the Special Committee on Geographical Indications and Trade in Wines and Spirits is to determine its Rules of Procedure.

(6)It is appropriate to establish the position to be taken on the Union’s behalf within these two committees, respectively, as the decisions establishing the Rules of Procedure will have legal effects in the Union.

(7)The position of the Union within these two committees as regards the adoption of their respective Rules of Procedure should be based on the respective draft Decisions of the two committees attached to this Decision,

HAS ADOPTED THIS DECISION:

Article 1

The position to be taken on the Union's behalf in the Special Committee on Customs and Trade Facilitation, established under Article 50 of the Economic Partnership Agreement between the European Union and its Member States, of the one part, and the Southern African Development Community (‘SADC’) EPA States, of the other part, shall be based on the draft Decision of that committee regarding its Rules of Procedure attached to this Decision.

Article 2

The position to be taken on the Union's behalf within the Special Committee on Geographical Indications and Trade in Wines and Spirits, established under Article 13 of the Protocol 3 to the Economic Partnership Agreement between the European Union and its Member States, of the one part, and the Southern African Development Community (‘SADC’) EPA States, of the other part, shall be based on the draft Decision of that committee regarding its Rules of Procedure attached to this Decision.

Article 3

This Decision is addressed to the Commission.

Done at Brussels,

(1)    Economic Partnership Agreement between the European Union and its Member States, of the one part, and the SADC EPA States, of the other part (OJ L 250, 16.9.2016, p. 3).

EUROPEAN COMMISSION

Brussels, 20.10.2021

COM(2021) 637 final

ANNEX

to the

Proposal for a Council Decision

on the position to be taken on behalf of the European Union in the Special Committee on Customs and Trade Facilitation and in the Special Committee on Geographical Indications and Trade in Wines and Spirits established by the Economic Partnership Agreement between the European Union and its Member States, of the one part, and the SADC EPA States, of the other part, as regards the adoption of the Rules of Procedure for the Special Committee on Customs and Trade Facilitation and of the Rules of Procedure of the Special Committee on Geographical Indications and Trade in Wines and Spirits, respectively

ATTACHMENT 1

Draft DECISION No [...]

OF THE SPECIAL COMMITTEE ON CUSTOMS AND TRADE FACILITATION

regarding its Rules of Procedure

THE SPECIAL COMMITTEE ON CUSTOMS AND TRADE FACILITATION,

Having regard to the Economic Partnership Agreement between the European Union and its Member States, of the one part, and the SADC EPA States, of the other part ("the Agreement"), signed in Kasane on 10 June 2016, and in particular Articles 50(2)(f) thereof,

HAS ADOPTED THIS DECISION:

The Rules of Procedure of the Special Committee on Customs and Trade Facilitation are established as set out in the Annex.

This Decision shall enter into force on ...

Done at ... on .

Annex

RULES OF PROCEDURE OF THE SPECIAL COMMITTEE ON CUSTOMS AND TRADE FACILITATION

CHAPTER I

ORGANISATION

Article 1

Composition and Chair

1.The Special Committee on Customs and Trade Facilitation that is established in accordance with Article 50 of the Economic Partnership Agreement between the European Union and its Member States, of the one part, and the SADC EPA States, of the other part, ("the Agreement") shall perform its duties as provided for in Article 50 of the Agreement.

2.Reference to "the Parties" in these Rules of Procedure shall be in accordance with the definition provided for in Article 104 of the Agreement.

3.As provided for in Article 50(1) of the Agreement, the Special Committee on Customs and Trade Facilitation shall be composed of the representatives of the Parties.

4.As provided for in Article 50(4) of the Agreement, the Special Committee on Customs and Trade Facilitation shall be chaired alternately by an official of the European Commission and by an official of the SADC EPA States. The first meeting of the Special Committee on Customs and Trade Facilitation shall be co-chaired by an official of the European Commission and by an official of the SADC EPA States.

5.The mandate corresponding to the first period shall begin on the date of the first meeting of the Special Committee on Customs and Trade Facilitation and end on 31 December of the same year.

Article 2

Meetings

1.The Special Committee on Customs and Trade Facilitation shall meet once a year or at the request of either Party. The meetings shall be held in Brussels or in the territory of one of the SADC EPA states alternately, unless the Parties agree otherwise.

2.Unless the Parties agree otherwise, meetings of the Special Committee on Customs and Trade Facilitation shall be convened by the Party holding the Chair, after consulting the other Party.

Article 3

Observers

The Special Committee on Customs and Trade Facilitation may decide to invite observers on an ad hoc basis and determine which agenda items will be open to those observers.

Article 4

Secretariat

1.The Party hosting the meeting of the Special Committee on Customs and Trade Facilitation shall act as the Secretariat.

2.When the meeting takes place via electronic means, the Party holding the chairmanship shall act as the Secretariat.

CHAPTER II

FUNCTIONING

Article 5

Documents

Where the deliberations of the Special Committee on Customs and Trade Facilitation are based on written supporting documents, such documents shall be numbered and circulated by the Secretariat of the Special Committee on Customs and Trade Facilitation as documents of the Special Committee on Customs and Trade Facilitation.

Article 6

Notification and Agenda for the Meetings

1.The Secretariat shall notify the Parties of the convening of a Meeting and request inputs for the agenda no later than 30 days before the meeting. In case of an urgent matter and / or unforeseen circumstances to be considered the meeting may be convened at short notice.

2.A provisional agenda for each meeting shall be drawn up by the Secretariat of the Special Committee on Customs and Trade Facilitation. It shall be forwarded by the Secretariat to the Chair and members of the Special Committee on Customs and Trade Facilitation no later than 14 days before the beginning of the meeting.

3.The provisional agenda shall include items in respect of which the Secretariat of the Special Committee on Customs and Trade Facilitation has received a request for inclusion in the agenda by a Party.

4.The agenda shall be adopted by the Special Committee on Customs and Trade Facilitation at the beginning of each meeting. Items other than those appearing on the provisional agenda may be placed on the agenda if the Parties so agree.

5.The Chairperson of the Special Committee on Customs and Trade Facilitation may, upon agreement by all Parties, invite experts to attend its meetings in order to provide information on specific subjects.

Article 7

Report of Meeting

Unless the Parties agree otherwise, the Report of each meeting shall be drawn up by the Secretariat of the Special Committee on Customs and Trade Facilitation and adopted at the end of each meeting.

Article 8

Decisions and recommendations

1.The Special Committee on Customs and Trade Facilitation shall adopt by consensus decisions or recommendations in the cases provided for in the Agreement or where such power has been delegated to it by the Joint Council or the Trade and Development Committee.

2.Where the Special Committee on Customs and Trade Facilitation is empowered under the Agreement to adopt decisions or recommendations, or where such power has been delegated to it by the Joint Council or the Trade and Development Committee, such acts shall be entitled "Decision" or "Recommendation" respectively in the report of the meetings. The Secretariat of the Special Committee on Customs and Trade Facilitation shall give any approved decision or recommendation a serial number, the date of adoption and a description of their subject-matter. Each decision or recommendation shall provide for the date of its entry into force.

3.In the event that a SADC EPA State is not in attendance, the decisions and/ or recommendations of the meeting shall, be communicated to that member that was unable to attend the meeting by the Secretariat. That SADC EPA State shall provide a written response within 10 calendar days from dispatch of the decisions and/ or recommendations, indicating those decisions and/ or recommendations they are not in agreement with, including reasons thereof. In the absence of the above mentioned written response within 10 calendar days, the decisions and/ or recommendations shall be deemed adopted. In the event that the SADC EPA State that did not attend disagrees with decisions and/ or recommendations, the procedure in Paragraph 4 will apply.

4.In the period between meetings, the Special Committee on Customs and Trade Facilitation may adopt decisions and recommendations by written procedure if both Parties so agree. A written procedure shall consist of an exchange of notes between representatives of the Parties.

5.Decisions and recommendations adopted by the Special Committee on Customs and Trade Facilitation shall be authenticated by making an authentic copy signed by a representative of the European Union and by a representative of the SADC EPA States.

Article 9

Public Access

1.The meetings of the Special Committee on Customs and Trade Facilitation shall not be public, unless otherwise decided.

2.Each Party may decide to publish the decisions and recommendation of the Special Committee on Customs and Trade Facilitation.

CHAPTER III

FINAL PROVISIONS

Article 10

Expenses

1.Each Party shall meet any expenses it incurs as a result of participating in the meetings of the Special Committee on Customs and Trade Facilitation, both with regard to staff, travel and subsistence expenditure and with regard to postal and telecommunications expenditure.

2.Expenditure in connection with the organisation of meetings, the provision of interpretation services and reproduction of documents shall be borne by the Party hosting the meeting.

Article 11

Amendment of the Rules of Procedure

These Rules of Procedure may be amended in writing by a decision of Special Committee on Customs and Trade Facilitation in accordance with Article 8.

ATTACHMENT 2

Draft DECISION No [...]

OF THE SPECIAL COMMITTEE ON GEOGRAPHICAL INDICATIONS AND TRADE IN WINE AND SPIRITS

regarding its Rules of Procedure

THE SPECIAL COMMITTEE ON GEOGRAPHICAL INDICATIONS AND TRADE IN WINE AND SPIRITS

Having regard to the Economic Partnership Agreement between the European Union and its Member States, of the one part, and the SADC EPA States, of the other part ("the Agreement"), signed in Kasane on 10 June 2016, and in particular to Article 13(5) of the Protocol 3 to the Agreement

HAS ADOPTED THIS DECISION:

The Rules of Procedure of the Special Committee on Geographical Indications and Trade in Wines and Spirits are established as set out in the Annex.

This Decision shall enter into force on ...

Done at ... on .

Annex

RULES OF PROCEDURE OF THE SPECIAL COMMITTEE ON GEOGRAPHICAL INDICATIONS AND TRADE IN WINES AND SPIRITS

CHAPTER I

ORGANISATION

Article 1

Composition and Chair

1.The Special Committee on Geographical Indications and Trade in Wine and Spirits ('the Special Committee') established under Article 13 of Protocol 3 of the Economic Partnership Agreement between the European Union and its Member States, of the one part, and the SADC EPA States, of the other part ('the Agreement'), shall perform its duties in accordance with that Article.

2.Reference to 'the Parties' in these rules of procedure shall be made in accordance with the definition provided for in Article 1 of the Protocol 3 of the Agreement, namely South Africa and the EU.

3.The Special Committee shall be composed of representatives of the Parties.

4.The meetings of the Special Committee shall be chaired alternately by an official of the European Commission and by an official of South Africa.

5.The mandate referred to paragraph 4 that corresponds to the first period shall begin on the date of the first meeting of the Special Committee and end on 31 December of the same year.

Article 2

Meetings

1.The Special Committee shall meet at regular intervals, at least once a year, and at the request of either Party. The meetings shall be held alternately in Brussels or in the territory of one of the SADC EPA States, unless the Parties agree otherwise.

2.Unless the Parties agree otherwise, meetings of the Special Committee shall be convened by the Party holding the chair, after consulting the other Party.

3.The Parties may agree to hold the meetings of the Special Committee via electronic means.

Article 3

Observers

The Special Committee may decide to invite observers to attend its meetings on an ad hoc basis and determine which agenda items will be open to those observers.

Article 4

Secretariat

1.The Party hosting the meeting of the Special Committee shall act as the Secretariat of the Special Committee ('the Secretariat').

2.When the meeting takes place via electronic means, the Party holding the chair shall act as the Secretariat.

CHAPTER II

FUNCTIONING

Article 5

Documents

Where the deliberations of the Special Committee are based on written supporting documents, such documents shall be numbered and circulated by the Secretariat as documents of the Special Committee.

Article 6

Notification and agenda for the meetings

1.The Secretariat shall notify the Parties of the convening of a meeting and request inputs for the agenda no later than 30 days before the meeting. In case of an urgent matter or unforeseen circumstances to be considered, the meeting may be convened at short notice.

2.A provisional agenda shall be drawn up by the Secretariat for each meeting. It shall be forwarded by the Secretariat to the Chair and to the members of the Special Committee no later than 14 days before the meeting.

3.The provisional agenda shall include items in respect of which the Secretariat has received a request for inclusion by a Party.

4.The agenda shall be adopted by the Special Committee at the beginning of each meeting. Items other than those on the provisional agenda may be placed on the agenda if the Parties so agree.

5.The Chairperson of the Special Committee may, upon agreement by the Parties, invite experts to attend its meetings in order to provide information on specific subjects.

Article 7

Report of meeting

Unless the Parties agree otherwise, the report of each meeting shall be drawn up by the Secretariat and adopted at the end of each meeting.

Article 8

Decisions and recommendations

1.In accordance with Article 13(3) of Protocol 3 of the Agreement, the Special Committee may make recommendations and adopt decisions by consensus in the cases provided for in the Protocol 3 of the Agreement.

2.Where the Special Committee is empowered under the Protocol 3 of the Agreement to adopt decisions or recommendations, or where such power has been delegated to it by the Trade and Development Committee, such acts shall be entitled 'Decision' or 'Recommendation' respectively in the report of the meetings referred to in Article 7. The Secretariat shall give any adopted decision or recommendation a serial number, the date of adoption and a description of its subject-matter. Each decision or recommendation shall provide for the date of its entry into force.

3.In the period between meetings, the Special Committee may adopt decisions or recommendations by written procedure or by electronic means if both Parties so agree. A written procedure shall consist of an exchange of notes between representatives of the Parties.

4.Decisions and recommendations adopted by the Special Committee shall be authenticated by two original copies signed by a representative of the EU and by a representative of South Africa.

Article 9

Public Access

1.The meetings of the Special Committee shall not be public, unless otherwise decided by the Parties.

2.The Parties may decide to publish the decisions and recommendations of the Special Committee.

CHAPTER III

FINAL PROVISIONS

Article 10

Expenses

1.Each Party shall meet any expenses it incurs as a result of participating in the meetings of the Special Committee, both with regard to staff, travel and subsistence expenditure and with regard to postal and telecommunications expenditure.

2.Expenses in connection with the organisation of a meeting, the provision of interpretation services and the reproduction of documents shall be borne by the Party hosting the meeting.

Article 11

Trade and Development Committee

The Special Committee shall report to the Trade and Development Committee.

Article 12

Amendment of the rules of procedure

These rules of procedure may be amended in writing by a decision of the Special Committee adopted in accordance with Article 8.