Collection of Information on Existing Bilateral Agreements in the Veterinary

Brussels, 12thJune2007

O/REF:NoteN-077-2007-EN

RE:Arrangements with Third Countries in the Veterinary and Plant Healthfields - Community competence

Collection of information on existing bilateral agreements in the veterinary

and plant health fields between MemberStates and Third Countries

As described in e-mail UECBV-E-158-2007-EN/FR, discussions are going on at Commission and Council level concerning the competence on the negotiations with Third Countries (TCs) relating to the veterinary and plant health fields. In particular, it was explained that the legal services of the institutions gave the opinion that such negotiations are of Community competence. It was also explained how the conclusions of specific working groups within the Councilstressed the need to establish legally the competence of the EU and the need to obtain further information from the Member States (MSs) on the type and number of bilateral agreements existing among single MSs and TCs.

As a consequence, MSs have been queried on the issues and you can find summarised here below the main information collected from national authorities.

Number and type of agreements in place between MemberStates and Third Countries

-The number of formal bilateral agreements in place seems to be quite low, even if few MSs provided thorough information on that. Among the ones reported, the majority relates to agreements with China and Japan.

-On the contrary the number of different bilateral certificates reported by MSs amounts to 3,500-5,000, with several hundreds under negotiation and a big difference between the different MSs.

-MSs providing information reported that multilateral obligations were respected within the agreements and that no reciprocal arrangements in relation to access of EC market in exchange to access to TCs market were included in the agreements.

-Circumstances where a MS has conducted bilateral negotiations for veterinary certificates already foreseen by Community agreements have been raised. [The position of the Commission is that such bilateral negotiations could take place provided full transparency by the MS concerned, so that all other MSs can potentially profit from the results gained.]

Information on potentially problematic agreements (resulting in unfair competition, conflicts with existing EU agreements or including additional provisions to the ones requested for EU internal trade)

-Any MS reported the existence of such kind of agreements.

-MSs commented that an effort should be put in promoting acceptance of EU internal rules by TCs, but that sometimes additional requirements are imposed in order to allow exports (e.g. concerning animal health status, national/regional origin requirements, additional inspections in plants etc.).

-MSs reported that such additional requirements are guaranteed to TCs only when they are indispensable in order to have TCs’ agreements and only if they are not harmonised under EU legislation or were negotiated before entering into force of EU legislation on the subject.

Accession to the EU

-New MSs have reported that the agreements in place with other TCs before accession were annulled when accession took place.

-No complaints from TCs have been reported so far because of disproportionate measures related to the exports to the EU after accession (apart from complaints from the USA for certain derogations granted by the EU to new MSs and not to TCs).

Draft Council conclusions on the issue, to be adopted by the Council in June

Following the opinions and information provided by the Commission (see e-mail UECBV-E-158-2007-EN/FR) and following the report summarised above, the Presidency of the Council has prepared some draft conclusions and discussions have been resumed among MSs within the Council.

• Within the draft conclusions the Council reminds that the negotiation and conclusion of trade agreements with TCs is a matter of exclusive competence of the Community, in accordance with article 133 or the Treaty, and that the Council, in 1995, authorised the Commission to conduct negotiations relating to agreements on sanitary and phytosanitary (SPS) measures.

• The Council confirms its appreciation of the negotiations conducted so far by the Commission (with the help of specific Working Parties – see below) and invites the Commission to continue negotiations with TCs on sanitary and phytosanitary measures. The additional scope of including existing bilateral agreements in the future Community agreements signed with Third Countries should also be included in the work.

• As mentioned, specific Working Parties have been established in order to assist the Commission in conducting the negotiations (i.e. Potsdam and Roosendaal Working Parties). Such Working Parties are composed of representatives of several MSs, depending on the specific negotiation, and ensure that Community negotiations are not carried out by the Commission alone, but in collaboration with MSs. The document on the right lists for instance the MSs assisting the Commission in veterinary negotiations with certain TCs.

• The Council classifies the existing bilateral agreement between MSs and TCs in different categories, including agreements concerning:

-veterinary and plant health certificates;

-technical and administrative implementation of SPS Agreement and of specific Community agreements in the SPS fields;

-cooperation on a technical level between authorities;

-formal agreements under the Vienna Convention on the Law of Treaties of 1969.

• The Council then lists certain conditions which should be met by bilateral export certificates agreed between MSs and TCs. In particular, it should be ensured that:

-certificates are in compliance with the SPS agreement, EU legislation and EU agreements with TCs;

-conditions for the access to EU should not be included;

-clauses restricting the free internal market should not be included (unless justified);

-transparency and information should be granted with the Commission and other MS.

The Council asks MSs to make accessible their bilateral agreements, asking to the Commission to check and try to solve inconsistencies with such conditions.

• The Council also asks the Commission to consider the development of specific guidelines/measures in order to ensure the conformity and legal security of future MSs bilateral agreements with the Community competence.

[The position of the Commission on the subject is that a specific legislative framework could establish when MSs are authorised to initiate discussions with TCs on SPS issues in the field of exclusive competence of the Community. In addition, in such cases, any agreement reached should be fully compatible with EU legislation, should not include measures creating unfair competitive conditions for exports, should respect EU international obligations and should be conducted in a full transparent manner.]

• The Council also calls for a joint action by the Commission and MSs in order to seek to eliminate unjustified restrictions in the access to TCs markets. Commission and MSs will establish priorities and ensure a follow-up to this action.

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