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

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 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.Context 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.

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.Position to be taken on the Union'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.

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’ 1 .

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.

4.3.Conclusion

5.Publication of the envisaged act

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

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.

Article 3

This Decision is addressed to the Commission.

Done at Brussels,

(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.

(2)    OJ L 186, 12.6.2020, p. 1.

EUROPEAN COMMISSION

Brussels, 21.6.2021

COM(2021) 314 final

ANNEX

to the

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

ATTACHMENT

DECISION No […/2021]
OF THE TRADE COMMITTEE

of …

adopting its Rules of Procedure

THE TRADE COMMITTEE,

Having regard to the Free Trade Agreement between the European Union and the Socialist Republic of Viet Nam, and in particular Articles 17.1, paragraph 4, point (f), thereof,

Whereas:

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

HAS DECIDED AS FOLLOWS:

1.The Rules of Procedure of the Trade Committee, as set out in the Annex, are hereby adopted.

2.This Decision shall enter into force on [date to be agreed].

Done at …, ….

ANNEX

RULES OF PROCEDURE OF THE TRADE COMMITTEE

established by Article 17.1 of the Free Trade Agreement between the European Union, of the one part, and the Socialist Republic of Viet Nam, of the other part

ARTICLE 1

Role and name of the Trade Committee

1.    The Committee established pursuant to Article 17.1 of the Free Trade Agreement between the European Union, of the one part, and the Socialist Republic of Viet Nam, of the other part, (hereafter referred to as “Agreement”) is responsible for all matters referred to in Article 17.1 of the Agreement.

2.    The above Committee shall be referred to in documents of the Committee, including decisions and recommendations, as the Trade Committee.

ARTICLE 2

Composition and Chair

1.    Pursuant to paragraph 1 of Article 17.1 of the Agreement, the Trade Committee is composed of representatives of the European Union and of the Socialist Republic of Viet Nam.

2.    The Trade Committee shall be co-chaired by the Member of the European Commission in charge of Trade and by the Minister of Industry and Trade of Viet Nam or their respective delegates.

3.    In case the Trade Committee is co-chaired by the respective delegates, each Party shall notify to the other Party the name, position and contact details of the delegated official who is in charge of co-chairing the Trade Committee for that Party. This delegated official is deemed to have the authorisation of representing the Party until the date the Party has notified to the other Party a new Co-chair.

ARTICLE 3

Secretariat

1.    Officials from the services responsible for Trade for each Party shall act together as Secretariat of the Trade Committee.

2.    The Secretariat will act as a contact point and facilitator for the organisation of the Trade Committee, as specified in these Rules of Procedure.

3.    Each Party shall notify to the other Party the name, position and contact details of the official who is the member of the Secretariat of the Trade Committee for that Party. This official is deemed to continue acting as member of the Secretariat for the Party until the date the Party has notified to the other Party a new member.

ARTICLE 4

Meetings

1.    The Trade Committee shall meet, in accordance with paragraph 2 of Article 17.1 of the Agreement. In particular, the Trade Committee shall meet once a year, unless otherwise decided by the Trade Committee, or in urgent cases at the request of a Party.

2.    The meetings shall be convened by the Co-chair of the Party hosting the meeting.

3.    A meeting may be held in person, by videoconference or by any other means.

ARTICLE 5

Delegations

The member of the Secretariat of the Trade Committee for each Party shall inform the member of the Secretariat of the other Party of the intended composition of the delegations of the European Union and of Viet Nam, respectively, at least 14 days in advance of the meeting, if possible. The lists shall specify the name and function of each member of the delegation.

ARTICLE 6

Agenda for the meetings

1.    A provisional agenda for each meeting shall be drawn up by the Secretariat of the Trade Committee on the basis of a proposal made by the member of the Secretariat of the Party hosting the meeting with a deadline for the other Party to provide comments. The provisional agenda shall be drawn up 30 days in advance of a meeting if possible and no later than 14 days before the meeting.

2.    The agenda shall be adopted by the Trade Committee at the beginning of each meeting. Items not appearing on the provisional agenda may be placed on the agenda by consensus.

ARTICLE 7

Minutes

1.    Draft minutes of each meeting shall be drawn up by the member of the Secretariat of the Party hosting the meeting, within 15 days from the end of the meeting, unless otherwise decided by the Co-chairs. The draft minutes shall be transmitted for comments to the member of the Secretariat of the other Party.

2.    The minutes shall, as a general rule, summarise each item on the agenda, specifying where applicable:

(a)    all documents submitted to the Trade Committee;

(b)    any statement that one of the Co-chairs of the Trade Committee requested to be entered in the minutes; and

(c)    the decisions taken, recommendations made, statements agreed upon and conclusions adopted on specific items.

3.    The minutes shall include a list of all decisions of the Trade Committee taken by written procedure pursuant to Article 8(2) since the last meeting of the Committee.

4.    An annex to the minutes shall also include a list of the names, titles and capacity of all individuals who attended the meeting of the Trade Committee.

5.    The member of the Secretariat of the Party hosting the meeting shall adjust the draft minutes on the basis of comments received and the draft minutes, as revised, shall be approved by the Parties within 30 days of the date of the meeting, or by any other date agreed by the Co-chairs. Once approved, two originals of the minutes shall be established by the Secretariat and the Parties shall each receive one original of the minutes.

6.    Where the present rules apply to the meetings of specialised committees, the minutes of the specialised committee meetings shall be made available for any subsequent meetings of the Trade Committee.

ARTICLE 8

Decisions and recommendations

1.    The Trade Committee may adopt decisions and recommendations in respect of all matters where the Agreement so provides. The Trade Committee shall adopt decisions and recommendations by mutual consent, as provided for in Article 17.4 of the Agreement.

2.    In the period between meetings, the Trade Committee may adopt decisions or recommendations by written procedure.

3.    The text of a draft decision or recommendation shall be presented in writing by a Co-chair to the other Co-chair in the working language of the Trade Committee. The other Party shall have one month, or any longer period of time specified by the proposing Party, to express its agreement to the draft decision or recommendation. If the other Party does not express its agreement, the proposed decision or recommendation shall be discussed and may be adopted at the next meeting of the Trade Committee. The draft decisions or recommendations shall be deemed to be adopted once the other Party expresses its agreement and their adoption shall be recorded in the minutes of the Committee meeting pursuant to Article 7(2).

4.    Where the Trade Committee is empowered under the Agreement to adopt decisions or recommendations, such acts shall be entitled ‘Decision’ or ‘Recommendation’ respectively. The Secretariat of the Trade Committee shall give such decisions or recommendations a progressive serial number, the date of adoption and a description of their subject-matter. Each decision and recommendation shall provide for the date of its entry into force.

5.    The decisions and recommendations adopted by the Trade Committee shall be established in duplicate, authenticated by the Co-chairs and transmitted one to each Party.

ARTICLE 9

Transparency

1.    The Parties may agree, by consensus, to meet in public.

2.    Each Party may decide on the publication of the decisions and recommendations of the Trade Committee in its respective official publication or online.

3.    All documents submitted by a Party should be considered as confidential, unless that Party decides otherwise.

4.    Provisional agendas of the meetings shall be made public before the meeting of the Trade Committee takes place. The minutes of the meetings agreed in accordance with Article 7 shall be made public.

5.    Publication and disclosure of documents mentioned under paragraphs 2 to 4 shall be made in compliance with each Party’s applicable data protection rules and in accordance with Article 17.15 of the Agreement.

ARTICLE 10

Languages

1.    The working language of the Trade Committee shall be English.

2.    The Trade Committee shall adopt decisions concerning the amendment or interpretation of the Agreement, in the languages of the authentic texts of the Agreement. All other decisions of the Trade Committee, including the one through which the present rules of procedure are adopted, shall be adopted in the working language referred to in paragraph 1.

3.    Each Party shall be responsible for the translation of decisions and other documents into its own official language(s), if required pursuant to this Article, and it shall meet expenditures associated with such translations.

ARTICLE 11

Expenses

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

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

3.    Expenditure in connection with the provision of interpretation services to and from the working language of the Trade Committee at meetings shall be borne by the Party hosting the meeting.

ARTICLE 12

Specialised committees and working groups

1.    The Trade Committee shall be informed in writing of the contact points designated by specialised committees or working groups established under the Agreement. All relevant correspondence, documents and communications between the contact points of each specialised committee and working group regarding the implementation of the Agreement shall be forwarded to the Secretariat of the Trade Committee simultaneously.

2.    Pursuant to Article 17.2, paragraph 6 of the Agreement a specialised committee shall report to the Trade Committee on results and conclusions from each of their meetings.

ARTICLE 13

Amendments of the Rules of Procedure

These Rules of Procedure may be amended in writing by a decision of the Trade Committee in accordance with Article 8.

ARTICLE 14

Information for the Joint Committee

Pursuant to Article 17.1, paragraph 5 of the Agreement, the Trade Committee shall inform the Joint Committee set up under the Partnership and Cooperation Agreement as part of the common institutional framework on its activities and those of its specialised committees, as relevant, at the regular meetings of the Joint Committee.