# Council Decision of 28 November 1997 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the results of the WTO negotiations on basic telecommunications services (97/838/EC)

EU Decision 1997/838 · adopted 28 November 1997

Council Decision of 28 November 1997 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the results of the WTO negotiations on basic telecommunications services (97/838/EC)

## Introductory text

Council Decision
of 28 November 1997
concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the results of the WTO negotiations on basic telecommunications services
(97/838/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 57, 66, 90, 99, 100, 100a and 113, in conjunction with Article 228 (2) and the first subparagraph of Article 228 (3) thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament,
Whereas the Marrakesh Agreement establishing the World Trade Organization and its related agreements, the Ministerial Decisions and Declarations, including the Ministerial Decision on Negotiations on Basic Telecommunications, as well as the Annex on Telecommunications and the Annex on Negotiations on Basic Telecommunications were approved by Council Decision 94/800/EC of 22 December 1994;
Whereas the overall commitments in basic telecommunications services negotiated by the Commission, on behalf of the European Community and its Member States, constitutes a satisfactory and balanced outcome;
Whereas on 30 April 1996 the Council authorized the Commission to approve, on behalf of the European Community and its Member States, the Decision of the Negotiating Group on Basic Telecommunications and the WTO Council for Trade in Services adopting the Fourth Protocol to the General Agreement on Trade in Services and the Decision of the Council for Trade in Services on Commitments in Basic Telecommunications;
Whereas on 14 February 1997 the Council authorized the Commission to submit to the WTO the final schedule of commitments on behalf of the European Community and its Member States;
Whereas the competence of the Community to conclude international agreements does not derive only from explicit conferral by the Treaty but may also derive from other provisions of the Treaty and from acts adopted pursuant to those provisions by Community institutions;
Whereas where Community rules have been adopted in order to achieve the aims of the Treaty, Member States may not, outside the framework of the common institutions, enter into commitments liable to affect those rules or alter their scope;
Whereas some commitments on basic telecommunications services fall within the competence of the Community under Article 113 of the Treaty; whereas, furthermore, other commitments on basic telecommunications services affect Community rules adopted on the basis of Articles 57, 66, 90, 99, 100 and 100a and may therefore only be entered into by the Community alone;
Whereas the use of Article 100 of the Treaty as a legal base for this Decision is justified also by the fact that the aforementioned commitments on basic telecommunications services are likely to affect Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States and Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, which are based on Article 100 of the Treaty;
Whereas, by their nature, the Agreement establishing the World Trade Organization and the Protocols to the General Agreement on Trade in Services, are not susceptible to being directly invoked in Community or Member States courts,
HAS DECIDED AS FOLLOWS:

## Sole Article 

1. The Fourth Protocol to the General Agreement on Trade in Services concerning basic telecommunications services is hereby approved on behalf of the European Community with regard to that portion of it which falls within the competence of the Community.
2. The text of the Fourth Protocol is attached to this Decision, as are also the following:
the schedule of specific commitments of the Community and the Member States, which is part of the overall package of commitments reached at the WTO on 15 February 1997,
the decision of the Council for Trade in Services on commitments in basic telecommunications, and
the report of 15 February 1997 by the Group on Basic Telecommunications to the Council for Trade in Services.
3. The President of the Council is hereby authorized to designate the person(s) empowered to sign the Fourth Protocol to the General Agreement on Trade in Services in order to bind the Community with regard to that portion of the Protocol falling within its competence.

## Signature

Done at Brussels, 28 November 1997.
For the Council
The President
G. Wohlfart

## FOURTH PROTOCOL TO THE GENERAL AGREEMENT ON TRADE IN SERVICES

Done at Geneva this fifteenth day of April one thousand nine hundred and ninety-seven, in a single copy in the English, French and Spanish languages, each text being authentic, except as otherwise provided for in respect of the Schedules annexed hereto.

## 

Members of the World Trade Organization (hereinafter referred to as the ‘WTO’) whose Schedules of Specific Commitments and Lists of Exemptions from Article II of the General Agreement on Trade in Services concerning basic telecommunications are annexed to this Protocol (hereinafter referred to as ‘Members concerned’),
Having carried out negotiations under the terms of the Ministerial Decision on Negotiations on Basic Telecommunications adopted at Marrakesh on 15 April 1994,
Having regard to the Annex on Negotiations on Basic Telecommunications,
Agree as follows:
1.. Upon the entry into force of this Protocol, a schedule of specific commitments and a list of exemptions from Article II concerning basic telecommunications annexed to this Protocol relating to a Member shall, in accordance with the terms specified therein, supplement or modify the schedule of specific commitments and the list of Article II exemptions of that Member.
2.. This Protocol shall be open for acceptance, by signature or otherwise, by the Members concerned until 30 November 1997.
3.. The Protocol shall enter into force on 1 January 1998 provided it has been accepted by all Members concerned. If by 1 December 1997 the Protocol has not been accepted by all Members concerned, those Members which have accepted it by that date may decide, prior to 1 January 1998, on its entry into force.
4.. This Protocol shall be deposited with the Director-General of the WTO. The Director-General of the WTO shall promptly furnish to each Member of the WTO a certified copy of this Protocol and notifications of acceptances thereof.
5.. This Protocol shall be registered in accordance with the provisions of Article 102 of the Charter of the United Nations.

## THE EUROPEAN COMMUNITIES AND THEIR MEMBER STATES — SCHEDULE OF SPECIFIC COMMITMENTS

Broadcasting is defined as the uninterrupted chain of transmission required for the distribution of TV and radio programme signals to the general public, but does not cover contribution links between operators.
Luxembourg has requested a delayed date for the liberalisation of telecommunications until 1 January 2000. The EC decision on this request is still pending.
Applications for further licences to be received as from 1 August 1998.
Footnote for clarification purposes: Some EC Member States maintain public participation in certain telecommunication operators. EC Member States reserve their rights to maintain such public participation in the future. This is not a market access limitation. In Belgium, government participation and voting rights in Belgacom are freely determined under legislative powers as is presently the case under the law of 21 March 1991 on the reform of government-owned economic enterprises.
Modes of supply:1. Cross-border supply2. Consumption abroad3. Commercial presence4. Presence of natural persons
Sector or subsector
Limitations on market access
Limitations on national treatment
Additional commitments
2.C Telecommunications services
Telecommunications services are the transport of electromagnetic signals — sound, data image and any combinations thereof, excluding broadcasting. Therefore, commitments in this schedule do not cover the economic activity consisting of content provision which require telecommunications services for its transport. The provision of that content, transported via a telecommunications service, is subject to the specific commitments undertaken by the European Communities and their Member States in other relevant sectors.
All sub-sectors
The European Communities and their Member States undertake additional commitments as contained in the attachment, all parts of which are equally binding.
FIN: The general horizontal requirements for legal entities in GATS/SC/33 shall not apply to the telecommunications sector except as:
half of the founders, half of the members of the board of directors and the managing director must have permanent residence in the European Economic Area. If the founder is a legal person, it must have residence in the EEA.
FIN: The general horizontal requirements for legal entities in GATS/SC/33 shall not apply to the telecommunications sector. Requirements concerning the Åland islands shall continue to apply.
B: Licensing conditions may address the need to guarantee universal service, including through financing, in a transparent, non-discriminatory and competitively neutral manner and will not be more burdensome than necessary.
1. None except for:
P: basic services can be supplied only by companies established in Portugal.
GR: access through SA and the company must be exclusively engaged in the supply of telecommunication services.
1. None
2. None
2. None
3. None except for:
3. None
GR: access through SA and the company must be exclusively engaged in the supply of telecommunication services.
P: The direct or indirect participation of natural persons, who are non-nationals of EC Member States or non-EC companies or firms in the capital of companies supplying basic telecommunications services cannot exceed 25 %.
P: The Government of Portugal has the intention of presenting to the Parliament draft legislation aiming at removing partially the present limitations on foreign equity participation in the capital of companies supplying basic telecommunication services no later than in 1998. In case of approval, the new legislation will be bound no later than in 1999.
F: Indirect: none. Non-EC natural or juridical persons may not hold directly more than 20 % of the shares or voting rights of companies authorised to establish and operate radio-based infrastructure for the provision of telecommunications services to the general public. For the application of this provision, companies or firms legally established according to the laws of a Member State of the EC are considered EC juridical persons.
4. Unbound except as indicated in the horizontal section.
4. Unbound except as indicated in the horizontal section.
Domestic and international
Domestic and international services provided using any network technology, on a facilities based or resale basis, for public and non-public use, in the following market segments (these correspond to the following CPC numbers: 7521, 7522, 7523, 7524**, 7525, 7526 and 7529**, broadcasting is excluded):
a.. Voice telephone services
b.. Packet switched data transmission services
c.. Circuit-switched data transmissions services
d.. Telex services
e.. Telegraph services
f.. Facsimile services
g.. Leased circuit services
1. None except for:
E: none, except that the liberalisation calendar will be as follows: one additional nation-wide licence in January 1998; full liberalisation as from 30 November 1998.
IRL: None except for public voice telephony and facilities-based service where none as of 1 January 2000.
P: None, except for public voice telephony, telex and telegraph where none as from 1 January 2000, and facilities-based services where none as from 1 July 1999.
GR: None except for public-voice telephony and facilities-based services where none as of 1 January 2003.
1. None
2. None
2. None
3. None except for:
E: none, except that the liberalisation calendar will be as follows: one additional nation wide licence in January 1998; full liberalisation as from 30 November 1998.
IRL: None except for public voice telephony and facilities-based services where none as of 1 January 2000.
P: None, except for public voice telephony, telex and telegraph where none as from 1 January 2000 and facilities-based services where none as from 1 July 1999.
GR: None except for public voice telephony and facilities-based services where none as of 1 January 2003.
3. None
4. Unbound except as indicated in the horizontal section.
4. Unbound except as indicated in the horizontal section.
o. Other services:
Mobile and personal communications services and systems
1. None except for:
IRL, P: international interconnection of mobile networks with other mobile or fixed networks where none as of 1 January 1999.
1. None
2. None
2. None
3. None except for:
IRL, P: international interconnection of mobile networks with other mobile or fixed networks where none as of 1 January 1999.
3. None
4. Unbound except as indicated in the horizontal section.
4. Unbound except as indicated in the horizontal section.

---
Source: https://www.legislation.gov.uk/eudn/1997/838 (the official version)
Page: https://openlegislation.uk/eu-decision-1997-838
Contains public sector information licensed under the Open Government Licence v3.0. Source: legislation.gov.uk, The National Archives.