Legal Practice Briefing
29 August 1996
EUROPEAN UNION DEVELOPMENTS
While the final section deals with trade developments, this Briefing is principally devoted to the European Union's efforts to achieve the benefits of what has variously been called, amongst others, the 'Information Superhighway' or 'Global Information Infrastructure'. As well as the regulatory and technical aspects of mass market information services implicit in names such as 'information superhighway', the EU is also considering social and cultural changes resulting from easy access to massive amounts of information. The EU has called its approach as one of achieving the 'information society'.
The 'Information Society'
The Regulatory and Legal Framework of the EU's Information Society
Privacy and Personal Data Protection
Security of Information Transfer and Encryption
Enforcement of Legal Rights
Competition Rules in the Information Society
Liberalisation of Communication Services
Liberalisation of EU Telecommunications
Australia EU Trade and Cooperation Framework Agreement Proposed
New EU Strategy to Access International Markets.
In the second half of 1994 the European Commission issued a communication which established four basic areas which needed to be considered in order to enhance the transfer of information electronically and thereby start the journey to achieving the 'information society' in Europe. First, it was recognised that the regulatory and legal framework needed adjustment and enhancement. This necessarily involved reconsideration of the rules concerning Intellectual Property Rights (IPR), privacy, security of information transfers and legal protection of such transfers, standards particularly to enable interoperability of information systems, competition and consumer protection rules. Second, telecommunication and other networks and basic information services needed to be liberalised while at the same time providing new applications and content to be available over the networks. Third, social and cultural aspects were to be considered. Finally, EU promotional activities were necessary to encourage individuals and economic entities to use and enhance the benefits of the 'information society'.
This Briefing will focus on the first two areas, namely the regulatory legal framework and liberalisation of communications services.
The EU countries, like Australia, are very active participants in international copyright matters. The proposed extended rights for authors of works and producers of films through a protocol to the Berne Convention and a 'New Instrument' to extend the rights of performers and producers of sound recordings, in the World Intellectual Property Organisation (WIPO), are two examples of the EU becoming involved in extending rights to content providers for information and entertainment networks. Both of these possible new treaties, the Berne Protocol and New Instrument, are being largely driven by the potential of digital technology to deliver, without needing to make a hard copy, such things as access to software, a recording or viewing of a video, music and film. There is a real concern that the possibility of unrestricted use through digital transmission of copyrighted material on a mass scale could undermine the income of authors, artists, computer programmers, performers, and music and film producers. This could, in turn, diminish the effort, imagination and investment which these people would be prepared to put into their creations.
Currently in all EU countries there are rights granted to creators of works and recordings, films and photographs as well as to performers and broadcasters. The nature and extent of these rights can however, vary considerably between one EU country and another. The EU has tried to harmonise many of the rights granted to creators of works, broadcasters, performers etc. but this has proven so far, to be only partly successful. Several directives have been adopted by the Council of the European Communities to harmonise copyright and related rights across EU countries. While EU countries are obligated to implement these EU Directives, compliance is incomplete.
The Directives are:
- Legal Protection of Computer Programs91/250
- Rental and Related rights92/100
- Satellite Broadcasting Cable Retransmission93/83
- Term of Protection1993
- Legal Protection of Databases1996.
Extension of Copyright and Similar IP Rights
The Computer Programs Directive concluded in 1991 ensures that computer programs are covered by copyright, and enables the creator of software to prevent copying of the software except for certain limited exceptions.
In the latter half of 1995, and in some EU countries not until 1996, following the Term of Protection Directive, new rules were introduced extending the term of protection of copyright and similar IP rights. The main changes are:
- increase in the duration of copyright in literary, dramatic, musical and artistic works of known authorship, to life of the author plus 70 years;
- the term of copyright in films is now linked to the lives of the persons connected with a film and will only expire 70 years after the death of the last of those to die;
- copyright duration concerning works of unknown authorship is increased to 70 years after the date on which the work is made, or if made available to the public during that period, from the date on which it is first made available;
- rights in a performance are changed so that protection is available for 50 years from when the performance takes place or, if a recording of the performance is made available to the public within that time, for 50 years from when the recording is first made available; and
- perhaps most importantly from Australia's point of view, there has been introduced provisions applying reciprocal duration of copyright and performers' rights in the case of works and performances connected with countries not members of the European Economic Area (EEA).
In order to encourage information exchange, in February 1996, an EU Directive done in March 1996 introduced an exclusive right for database creators. Databases which involved a substantial investment are now protected throughout the EU for 15 years after they are first made available to the public. This was thought desirable in order to protect investment in time, money and effort, whether or not the database itself was innovative. (Most other intellectual property rights are granted for innovative or original creations, no matter what level of effort or investment the creation entailed.)
The European Commission expects that most services in the 'Information Society' will be provided from an electronic database and that many databases will have a major impact on the creation of new multimedia products. Hence it was considered essential for the EU to provide clear rules on the level of protection for databases thereby encouraging investment in their manufacture.
Under the new Directive, database manufacturers will be able to prohibit the extraction and/or reutilisation of substantial parts of the database by others. A legitimate user of a database can however extract and/or reutilise non-substantial parts of a database as well as:
- extracting parts for the purposes of illustration for teaching or scientific research;
- extracting and/or reutilising the database for the purposes of public security or the proper performance of an administrative or judicial procedure.
The Directive defines a 'Database' as 'a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means'. The Directive also affirms that databases which constitute the author's own intellectual creation are protected by copyright, and that the rights attached to the contents of a database are not affected by the new Directive.
This new right in databases is only given to database manufacturers who are EU nationals or residents, although it may be extended to nationals of non-EU countries who give equivalent protection to databases of EU origin. Currently, this provision would largely exclude non-original databases manufactured by Australian nationals.
Exhaustion of Intellectual Property Rights (IPR)
In order not to impede the free movement of goods, the European Court of Justice has, over a number of years, evolved a doctrine of 'exhaustion' of intellectual property rights. According to this doctrine the owner of intellectual property has the exclusive right to put their product on the EU market for the first time (or determine who else may do so), so as to allow them to obtain payment for the product. However, with that single payment the owner's right is exhausted. Probably the most important result of this doctrine is that the owner of an IP right cannot prevent a product already lawfully sold (with the owner's consent) in one Member State of the EU from being imported into another Member State of the EU. To do so would be an unlawful exercise of the IP right. This doctrine is not applied in the case of rental of sound recordings, computer programs or films.
The EU has recently introduced a new Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of such Data. The aim of the Directive is to ensure EU-wide protection of, most notably, the right to privacy. The protection of personal information held by others is regarded as particularly important as the European Union experiences an enormous increase in the cross-border processing and flow of personal data. Different regulations on the proper protection of personal information in the EU countries has resulted in difficulties and led to this harmonised set of rules on the protection of personal data. Unlike in Australia, the new Directive provides protection for personal data in both the private and public sectors.
The transfer of personal data to Australia has been raised as a business issue because of some European night-time data processing in Australia, marketing of Australian business in Europe and information required (for example, on employees) for the running of a subsidiary business in Europe by an Australian parent.
The EU Directive defines personal data as being:
'any information relating to an identified or identifiable natural person who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.'
The Directive applies to any processing of personal data whether in manual files, computers or otherwise. The rules apply however, only to manual files which are part of a filing system ('any structured set of personal data which is accessible according to specific criteria'). The rules also apply to sound and image data, if the data relates to a natural person who can be identified. If data is kept for historical research only, certain provisions in the Directive do not have to be complied with.
Data Flows to Australia
Under the Directive data may only be transferred to Australia (or any third country) if Australia ensures 'an adequate level of protection' of personal data. Whether this requirement is satisfied would depend on the nature of the data and the purpose and duration of the proposed processing operation, the country of final destination of the data, any laws in force in Australia and the professional rules and security measures which are complied with in Australia (or other third country). The EU countries and the European Commission will notify each other of the countries considered not to have a sufficient level of protection. Following an EU decision to prohibit data flows, each EU country is required to take measures to prevent transfer of data of the relevant type to the third countries concerned. In some restricted circumstances the data flow to such a country may still occur when, for example, the transfer is necessary for the transfer of money or the data subject has given their unambiguous consent to the transfer.
Also, if a data controller gives sufficient guarantees in respect of the protection of the privacy and fundamental rights and freedom of individuals, an EU country may authorise a transfer of personal data to a country which does not ensure a sufficient level of protection (the so-called 'contractual solution').
Data Access Rules
Under the new Directive access to data by the data subject is extensive. All data which is processed, and not only the data which is held, is covered by the Directive.
The data subject has the right:
- to information relating to the purposes of processing the data and the categories of data concerned
- to the names of recipients or categories of recipients to whom the data is disclosed
- to have all available information as to the source of the data
- to be informed of the logic involved in any automatic processing of the personal data, and
- to require that third parties to whom the data has been disclosed are notified of any rectification, erasure or blocking of the data which arises because of the incomplete or inaccurate nature of the data, unless this proves impossible or involves a disproportionate effort..
According to a European Commission Green Paper, the EU needs to protect encrypted television and other services from unlawful use or copying so as to allow an information society to develop. It is envisaged that encrypted services, such as digital television and video-on-demand, would be accessed on payment of a fee. However, there is a growing market in so-called 'smart-cards' and unofficial decoders which allow viewing of services without payment. Different laws to prevent piracy in different EU countries is preventing the operation of a single European market, particularly in encrypted TV services, so it is expected that proposals will soon be put forward to prohibit:
- the decoding of encrypted services without permission, and
- the manufacture, sale, import, use, installation and advertising of unauthorised decoders.
New rules are also expected to provide for penalties for breach, and payment for damages suffered by those whose rights have been infringed. The European Commission has already put forward at WIPO meetings EU agreed proposals on the protection of encrypted services..
In a recent case the European Court, when interpreting the Brussels Convention on Jurisdiction and Enforcement of Judgments, held that the victim of a libel by a newspaper article distributed in several EU states may bring an action for damages against the publisher either:
- before the courts of the EU state where the publisher of the defamatory publication is established (which has jurisdiction to award damages for all the harm caused by the defamation), or
- before the courts of each EU contracting state in which the publication was distributed and where the victim claims to have suffered injury to his reputation (which courts have jurisdiction to rule solely in respect of the harm caused in the state seized). The European Court also held that the criteria for assessing whether the event in question is harmful and the evidence required of the existence and extent of the harm alleged by the victim of the defamation are not governed by the Brussels Convention but by the substantive law determined by the national conflict of laws rules of the court seized of the matter. This decision might lead to forum shopping in EU cross-border defamation cases.
Injunctions and Damages
Generally EU legal advisers take the view that, under the Brussels Convention on Jurisdiction and Enforcement, it is normally best to sue an infringer of a legal obligation in the infringer's place of establishment in order to get an injunction and damages covering the whole of its infringing activities in the EU. In some circumstances however, there may be procedural advantages in applying for interim injunctions in countries where prompt relief is available, or in choosing to litigate a test case in a country which decides the issues of validity and infringement together, or which has (or does not have) provisions for discovery, inspection and cross-examination of witnesses. In a case involving transfer of information electronically (for example, via the Internet) it may be best to initially take action for injunctive relief in the country where the network provider is situated.
Counterfeit and Pirated Goods
To enhance the rules governing the prevention, seizure and destruction of goods which infringe IP rights, (for example, unauthorised copies of copyright goods and false trade mark use) the EU Member States, during the second half of 1995 introduced new rules for Customs authorities. The holder of an IP right, or an authorised user, can now directly request Customs authorities to intercept consignments of suspected counterfeit goods. Such requests can now be made in respect of:
- goods infringing copyright or design rights
- goods bearing unauthorised trade marks as well as the trade mark or Logo itself, and the packaging
- moulds and matrices used to manufacture counterfeit goods
- goods in transit and exports.
These new rules do not apply to goods of a non-commercial nature contained in personal luggage.
The EU rules on consumer protection are becoming more relevant as more consumers use the global electronic infrastructure, which currently is essentially the Internet. For example, the EU Unfair Contract Terms Directive, implemented in most EU countries during 1995, provides that a contractor cannot by simple reference to a notice (including one on an Internet Web site) exclude liability for personal injury or death. Indeed such a notice excluding any other liability is valid only if reasonable.
In cross-border credit transactions the EU is including in its proposals that consumers may be given information by electronic means. Other provisions make an assumption that information in electronic form is or can be equivalent to information provided in writing. These provisions ought to make the conduct of electronic commerce easier.
The Distance Sales Directive, expected to be adopted very soon, applies to contracts concluded by means of communication at a distance this would include electronic mail and teleshopping, as well as sales via an Internet Web page. The Directive imposes obligations on a supplier to provide certain information before a contract is made and to provide written confirmation of the contract. There is a seven day cooling-off period in which the customer can repudiate the contract.
The EU Council has agreed on proposed changes to the rules on comparative advertising so that advertisers can compare their products with those of their competitors, so long as they do not mislead the public nor denigrate other producers. In many EU countries the combined effect of trade mark law and unfair competition law has effectively prohibited comparative advertising. The differences in advertising rules was considered to be an impediment to sales and competition within the EU single market.
The European Court has recently limited the extent to which copyright owners can exercise their exclusive rights. A copyright owner cannot exercise exclusive rights in order to reserve for itself a monopoly in a secondary market. The most prominent case of this was an attempt by Irish TV broadcasters to prevent publication of their listings in a new comprehensive weekly television program guide. The European Court upheld a European Commission decision forcing the TV stations to provide their listings in a non-discriminatory manner so that they did not amount to an abuse of their monopoly position.
The European Commission has been quite active in enforcing the EU competition rules in the information services sector. The Commission has the power to approve agreements having benefits which outweigh distortions of competition in the EU. It can also fine undertakings which restrict competition in trade between the EU countries and often orders companies to cease anti-competitive activities. The European Commission can also prevent mergers and acquisitions which would create a dominant position on the EU market.
Recent prominent examples of exercise of the competition rules to enhance the free movement of information in the EU include:
- the declaration by the European Court that resale price obligations placed on book sellers in the UK and Ireland by publishers are unlawful because they restrict competition (the 'Net Book Agreement'). The European Commission is also examining a similar agreement between German and Austrian publishers.
- the exemption by the European Commission of certain types of patent and know-how licensing agreements from the competition rules, but only so long as such agreements comply with strict provisions set out in the so-called 'block exemption' Regulation on technology transfer.
- the approval of Viacom's and Bear Stearns joint venture in German language cable and television distribution.
- the investigation of Microsoft's pricing practices for software to be supplied with PCs made in different parts of Europe. There was also a suggestion that the Commission may investigate Microsoft's new global on-line service which seems to be largely designed to compete with the Internet.
- the investigation of an on-line services alliance between America On-line/Bertelsmann and Deutsche Telekom which already has a dominant position in the German on-line services market. America On-line is the US market leader and Bertelsmann has a dominant position in the German and European publishing market.
- the European Commission's approval of the acquisition of LPI Ltd., a company which develops on-line services for travel agents, by a joint venture between Thomas Group Travel, Leisureplan and Philips Media.
- the approval by the Commission of the merger by Seagate Technologies and Connor Peripherals of their manufacturing operations of hard disk drives and other information storage devices. The Commission decided that the two parties market share was low and that competition in the sector was strong.
- the Commission's rejection of a proposed joint venture between three Dutch television channels since a dominant position would be created. The Commission has said it was prepared to consider other proposals which have less of an impact on the market.
- the investigation into the joint venture between Burda, Matra-Hachette, Pearson and the USA based Meigher Communications and Interchange On-line Network to form Europe On-line. The Commission is concerned that Europe On-line should not be anti-competitive or restrict technological developments in the on-line services market before the market develops.
- the examination of a proposed alliance between BSkyB (of the Murdoch group), Bertelsmann of Germany and France's Canal + (of the Havas group) to establish a series of digital TV channels throughout Europe.
It appears that one of the main concerns of the European Commission for on-line services is whether dominant infrastructure and network providers should be permitted either to obtain material from content providers on an exclusive basis, or to contract with service providers on an exclusive basis. The fear is that exclusive arrangements would enable dominant operators to stifle competition.
The regulation of broadcasting is having a significant impact on the Information Society in Europe. Most, if not all, EU countries include in their definition of broadcasting any transmission of programs for reception in two or more locations, whether for simultaneous reception or by request of users of the broadcast service. A program is considered to be anything which is wholly or mainly of moving representational images, (so it does not include a program mainly of text). This wide definition includes video-on-demand, home shopping and even videophones although it seems that most EU countries make an exception for videophones.
It is likely that on-demand services with educational, entertainment and information content with frequently updated programs, will be widely available in Europe in the not too distant future. As broadcasting rules of each EU country are different, the European Commission has made proposals on which rules apply to general broadcasting and on-demand services and the restrictions which can be placed on providers of such services.
It will be noted that the current Broadcasting Directive already requires that each broadcaster shall be subject to the legislation of a single EU Member State which is responsible for ensuring the broadcaster's compliance. Each EU Member State must ensure freedom of reception and retransmission on their territory of broadcasts under the jurisdiction of another EU Member State.
In new proposals accepted by the EU Council, broadcasters offering home shopping and other interactive or on-demand services will be bound by the law of the EU country where the broadcaster is located, even if its broadcasts are received elsewhere. Home shopping and advertising time will be subject to controls on the length and frequency of such services/features. Home shopping programs will be considered as advertising so that they are subject to the time limits on advertising during any one hour period of broadcasting. Channels devoted exclusively to home shopping will, however, have different rules applicable and in certain circumstances shopping slots of up to three hours per day will be allowed to specific broadcasters. The proposed Directive also has provisions on protection of minors and, more controversially, minimum European program content requirements.
At least in the UK it has been recognised that the regulatory regime for telecommunications and broadcasting is becoming ill-equipped to address mass market on-line services. Late in 1995, OFTEL (the UK's telecommunications regulator) published a consultative document entitled 'Beyond the Telephone, the Television and the PC' (Available on the Internet at http://www.open.gov.uk/oftel/multi.htm). This document considered many of the regulatory issues in the UK for what it called 'broadband switched mass market services'. Most of these issues apply equally throughout the European Union.
The European Market
The market for telecommunications in the EU is changing dramatically, largely in response to changes in the regulatory regimes in the EU designed to liberalise the telecommunications infrastructure and provision of services throughout Europe. Considerable growth has been achieved in mobile telephony, as well as business communications through email and the Internet. Major regional and global alliances have been established not only by traditional suppliers of telecommunications services but also by utilities and cable companies. Examples include British Rail Communications in the UK, the Flemish cable companies in Belgium and cable and steel companies (Veba Thyssen) in Germany. At the same time former monopoly suppliers like Deutsche Telekom and British Telecom are facing competition in many sectors and have or are being privatised or, in the case of France, Ireland and Italy are now corporatised.
The Regulatory Framework
The EU's Regulatory Framework designed to liberalise the telecommunications market is based on three principles:
- liberalisation of areas under monopoly control
- open access to networks and services
- case by case application of the EU's competition rules.
A related issue which has also been dealt with by the European Commission is the protection of personal data, the uncontrolled transfer of which threatened to disrupt the interconnection of telecommunications networks in the EU. This issue of personal data protection has already been discussed (see pages 45).
Liberalisation in Stages
Liberalisation of telecommunications has occurred in four stages. The first stage, in 1988, broke the telecom monopolies hold over the supply of terminal equipment such as phones, fax machines, office switchboards etc. In 1990, stage two liberalised the supply of value-added services, data communications (including on-line services), and voice and data services for corporate networks and closed groups of users. Stage three, in 1994, opened the market to competition in the provision of satellite services and equipment. The final area to be liberalised from monopoly supply by national telecommunications carriers is voice telephony. It has been agreed that on 1 January 1998 there will be full liberalisation (that is, opening to competition) of all voice telephony services for the public and of network infrastructure in the EU, subject to possible derogations of up to five years for Greece, Ireland, Portugal and Spain and two years for Luxembourg. The liberalisation of voice telephony services could have a real impact because of the ability of data service providers to transmit voice by data packets for the cost of a local telephone call, as well as provide on-line services. Equally, cable TV operators will be able to use their networks to do the same.
The liberalisation of telecommunications in the EU has led to enhanced use of cable and mobile networks. Under the EU's liberalised regime cable TV networks may provide capacity for the purposes of liberalised telecommunications services. This is potentially very important for interactive on-line services. Mobile network operators can now use any type of already existing infrastructure (for example, own microwave links, cable TV networks of third parties, etc). Indeed the introduction of competition in mobile communications has been very successful and represents the most rapidly growing and competitive sector in European telecommunications. One outcome of liberalisation is development of the EU's system of GSM (Global System Mobile) which has been adopted in Australia.
It might also be noted that at the same time as these liberalisation measures were introduced, the EU Member States were required to separate their telecommunications regulatory activity from the operational activities of the public telecommunications operators/companies. Many EU Member States now have an independent regulatory authority similar to Austel..
Opening Access to Networks and Services
A common regulatory environment in Europe and minimum standards for particular services and technologies is regarded as essential to achieving the 'Information Society'.
The ability of users of infrastructure both to access adequate transmission capacity and to access services at an affordable price on fair terms; and also for service providers to interconnect with a competitor's network, has been recognised as fundamental to enable EU businesses or service providers to provide and/or use liberalised telecommunication services. To achieve these ends the so-called 'Open Network Provision (ONP)' rules were put in place together with specific EU Directives on leased (private) lines and voice telephony services which applied ONP rules to these services.
There is currently a proposal for an EU Directive applying open network provision principles to interconnection of networks. The idea is to provide a regulatory framework for ensuring fair and non-discriminatory interconnection for all operators and service providers in the EU. There are four main ways in which this is expected to be achieved:
- commercial negotiation will be the main means of achieving fair terms of interconnection but with effective dispute resolution procedures at the EU Member State level and conciliation procedures at the European level
- an obligation to grant or a right to obtain interconnection
- transparency of interconnection terms and prices and relevant underlying cost calculations
- additional obligations on organisations providing public telecommunications networks and services, and which have significant market power.
The European Commission has also moved to define the principal elements of universal service in the EU. It is this universal service which will be the minimum requirement for holders of a comprehensive service providers licence. Although not yet finalised, it is expected that some licence holders will pay other (dominant) service providers to provide the universal service obligations under a licence. Universal service is most commonly defined as being the delivery at an affordable price to every customer reasonably requesting it:
- of access to a network providing a defined voice telephony service, and
- the capability of using a fax, and
- most importantly, from the point of view of the information society, of connecting a computer modem to access on-line information services for low speed data services.
Convergence of Mobile and Fixed Network Systems
The convergence of wired and wireless (mobile) technologies providing similar or the same services has led to development of a regulatory framework which is largely technology neutral. The recent EU Directives on interconnection of telecommunication networks and licensing, apply equally to both mobile and fixed network operators. However, a specific Directive on mobile telecommunications, already mentioned above, removes all remaining monopoly rights in the mobile sector. In addition, this mobile Directive enables a mobile operator to interconnect with other mobile operators as well as enabling the construction of its own infrastructure/microwave links (or connection to use those owned by third parties). There is also now a requirement that at least one DCS 1800 operator be licensed in each EU Member State after 1 January 1998, as well as an immediate requirement to licence DECT (Digital European Cordless Telephone) systems.
Case by Case Application of the EU Competition Rules
The European Commission published guidelines in 1991 on the application of the competition rules to the telecoms sector. The merger control rules have also been used to prevent operators or service providers from forming alliances which could distort the telecommunications or information market or inhibit competition. The forming of ever larger telecommunication alliances which could dominate the EU market or smaller EU Member State markets has been the subject of regulatory constraints on a number of occasions by the European Commission. Most of the more important recent approvals or prohibitions are set out in the section on 'Competition Rules in the Information Society'.
Although these comments on the EU's competition rules generally apply, some commentators have noted a certain flexibility in interpretation of the EU competition rules in the telecommunications sector. It is argued that the competition rules have been relaxed by the European Commission in exchange for political acceptance in key EU Member States to open-up competition in their telecoms markets. This is believed to have occurred before the European Commission would approve a strategic alliance between the respective public telecommunications operators of France and Germany.
In a related development, the EU Council has recently approved liberalisation of telephone directories. Publishers and suppliers of directory services must be given access to information contained in public directories under equitable and non-discriminatory conditions. In France, telephone directories are already on-line through the Minitel system and Germany has just released a relatively cheap CD version of its directory.
The European Commission has proposed an agreement with Australia to give a legal and contractual framework to Australia's trade and cooperation with the EU. A political declaration on justice, home affairs and political cooperation will accompany the agreement. The proposed agreement is expected to be similar to those between the EU and other OECD countries.
The proposed agreement will be on a non-preferential basis, given both parties membership of the World Trade Organisation (WTO). The aim is to enhance trade, investment and industrial development between the parties. (It will also allow the European Commission to have a specific budget allocation for relations with Australia). Areas expected to be in the proposed agreement are cooperation on competition matters, consumer protection, exchange of statistics, training and education etc. It will be remembered that Australia already has specific agreements with the EU on science and technology, on wine and on uranium as well as a number of understandings on various agricultural products.
EU negotiations with Australia for the Framework Agreement are expected to commence immediately. Once the scope of the proposed agreement is finalised and it comes into force, a joint committee will monitor developments under the agreement.
In February this year the European Commission adopted a paper entitled 'The Global Challenge of International Trade: A Market Access Strategy for the European Union.' One of the aims of the paper is to set out a list of all the existing obstacles to trade with third countries and to attack the most difficult and persistent of them.
The principal measures to be taken to achieve greater market access for EU enterprises are:
- to identify obstacles to trade and establish priorities. A database will be established which would be available on-line to all interested parties in the EU.
- to improve coordination within the European Commission by setting up an action group on market access. This action group will deal with enquiries from business and enhance coordination between the various Directorates of the Commission which deal with trade policy issues.
- to involve industry more closely with the work of the European Commission, mainly through individual firms and trade associations providing the Commission with information on trade obstacles. (This information would remain confidential.)
It seems likely that one of the main mechanisms which will be used to force market access in non-EU countries is the so far little used Regulation (introduced in 1994) designed to ensure the exercise of the EU's rights under international trade rules.
ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)
The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact the Legal Practice before any action or decision is taken on the basis of any of the material in this briefing.