Commission Regulation (EU) No 1063/2010 of 18 November 2010 amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code
Modified by
Commission Implementing Regulation (EU) 2015/428of 10 March 2015amending Regulation (EEC) No 2454/93 and Regulation (EU) No 1063/2010 as regards the rules of origin relating to the scheme of generalised tariff preferences and preferential tariff measures for certain countries or territories, 32015R0428, March 14, 2015
Corrected by
Corrigendum to Commission Regulation (EU) No 1063/2010 of 18 November 2010 amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, 32010R1063R(02), November 10, 2011
Commission Regulation (EU) No 1063/2010of 18 November 2010amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs CodeTHE EUROPEAN COMMISSION,Having regard to the Treaty on the Functioning of the European Union,Having regard to Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs CodeOJ L 302, 19.10.1992, p. 1., and in particular Article 247 thereof,Whereas:(1)By virtue of Council Regulation (EC) No 732/2008 of 22 July 2008 applying a scheme of generalised tariff preferences for the period from 1 January 2009 to 31 December 2011 and amending Regulations (EC) No 552/97, (EC) No 1933/2006 and Commission Regulations (EC) No 1100/2006 and (EC) No 964/2007OJ L 211, 6.8.2008, p. 1. the European Union grants trade preferences to developing countries, in the framework of its scheme of generalised tariff preferences (the "GSP" or "scheme"). In accordance with Article 5(2) of that Regulation, the rules of origin concerning the definition of the concept of originating products, the procedures and the methods of administrative cooperation related thereto, are to be those laid down in Commission Regulation (EEC) No 2454/93OJ L 253, 11.10.1993, p. 1.(2)Following a wide-ranging debate initiated by its Green Paper of 18 December 2003 on the future of rules of origin in preferential trade arrangementsCOM(2003) 787., on 16 March 2005 the Commission adopted a Communication entitled "The rules of origin in preferential trade arrangements: Orientations for the future"COM(2005) 100. (the "Communication"). That Communication sets out a new approach to rules of origin in all preferential trade arrangements involving the European Union and in particular in development-orientated arrangements such as the GSP.(3)In the context of the Doha Development Agenda, the need to ensure a better integration of developing countries into the world economy has been recognised, in particular through improved access to the markets of developed countries.For that purpose, the rules of preferential origin should be simplified and, where appropriate, made less stringent, so that products originating in beneficiary countries can actually benefit from the preferences granted.(4)In order to ensure that the preferences actually benefit those who need them and to protect the own resources of the European Union, the changes to the rules of preferential origin should be accompanied by an adaptation of the procedures for their management.(5)The Commission’s impact assessment of this Regulation demonstrates that GSP rules of origin are perceived as too complex and too restrictive. It further shows that the actual use of the preferences granted is low for certain products and, in particular, those products which are of most interest to the least developed countries, and that rules of origin are one reason for this.(6)The impact assessment indicated that simplification and development-friendliness could be achieved by a single criterion applicable to all products for determining the origin of goods which are not wholly obtained in a beneficiary country, based on the value-added in the beneficiary country concerned and requiring compliance with a sufficient processing threshold. However, it did not demonstrate that a single method is indispensable to simplification or development-friendliness. Moreover, according to feedback from stakeholders there are a number of sectors for which the value-added criterion is either not well suited or should not be used as the sole criterion, such as agricultural and processed agricultural products, fishery products, chemicals, metals, textiles and clothing and shoes. Consequently other, simple criteria which may be easily understood by operators and easily controlled by administrations should be used in such sectors, either instead of the value-added criterion or as an alternative to it. These other criteria include a maximum permitted content of non-originating materials; change of tariff heading or sub-heading; a specific working and processing operation; and the use of wholly obtained materials. Nevertheless, simplicity requires that the number of different rules should be as few as possible. Therefore, the rules of origin should as far as possible be on a sector-by-sector rather than a product-by-product basis.(7)The rules of origin should reflect the features of specific sectors but also allow beneficiary countries a real possibility to access the preferential tariff treatment granted. Where appropriate, the rules should in addition reflect the differing industrial capacities of beneficiary countries. In order to encourage the industrial development of the least developed countries, where the rule is based on compliance with a maximum content of non-originating materials, the threshold applicable to such materials should always be as high as possible while still ensuring that the operations which take place in those countries are genuine and economically justified. A maximum content of non-originating materials of up to 70 % or any rule providing for an equivalent level of relaxation for products originating in the least developed countries should result in increased exports from them.(8)In order to ensure that the working or processing which takes place in a beneficiary country is a genuine, economically justified operation which will be of real economic benefit to that country, it is appropriate to lay down a list of insufficient working or processing operations which can never confer origin. This list may largely be the same as that which has existed hitherto. However, certain adaptations should be made. For example, in order to avoid diversion of trade and distortion of the sugar market, and in line with provisions already adopted as part of the rules of origin of other preferential trade arrangements, a new rule should be laid down precluding the mixing of sugar with any material.(9)A degree of flexibility should be ensured in those sectors where the value-added criterion does not apply, as currently, by allowing the use of a limited proportion of materials which do not satisfy the rules. However, the scope of such use should be clarified as regards products made using wholly obtained materials. Moreover, in order to allow further flexibility in sourcing materials the permitted proportion of those materials should be increased, except for certain sensitive products, from 10 % to 15 % of the ex-works price of the final product. Among those sensitive products are products falling within Chapters 2 and 4 to 24 of the Harmonized System, other than processed fishery products of Chapter 16, for which tolerances expressed in weight appear to be more suitable and products falling within Chapters 50 to 63 of the Harmonized System which should remain subject to specific tolerance rules based on either weight or value according to the case and varying according to the product.(10)Cumulation of origin is an important facilitation which allows countries having identical rules of origin to work together for the purpose of manufacturing products which are eligible for preferential tariff treatment. The existing conditions for regional cumulation of origin, a form of cumulation currently operating within three regional groups of countries, have proven complex and too stringent. They should therefore be simplified and made less stringent by removing the existing value condition. Furthermore, the existing cumulation possibilities between countries in the same regional group should be maintained despite the differentiation introduced by this Regulation in rules of origin in some cases between the least developed countries and other beneficiary countries. Such cumulation should only be permitted provided that when sending materials to another country of the group for the purpose of regional cumulation, each country applies the rule of origin applicable to it in its trade relations with the European Union. However, in order to guard against distortion of trade between countries having different levels of tariff preference, provision should be made to exclude certain sensitive products from regional cumulation.(11)In its Communication the Commission indicated that it was ready to examine any request for establishing new, merged or wider groups, insofar as economic complementarities exist, differences in preferential arrangements applicable to the various countries and the related risk of tariff circumvention are taken into consideration and the necessary structures and procedures for administrative co-operation for management and control of origin are put in place. In keeping with this, provision should be made for cumulation of origin between countries in regional cumulation groups I and III which meet the required conditions. Following a request submitted by Mercosur, a new regional cumulation group, to be called group IV, comprising Argentina, Brazil, Paraguay and Uruguay should be created. The application of regional cumulation among the said countries should be conditional upon the fulfilment of the necessary requirements.(12)Beneficiary countries should be permitted to further benefit from cumulation with countries which are partner countries to free-trade agreements ("FTA") concluded by the EU. This new type of cumulation, so-called extended cumulation, should be unidirectional, i.e. should only allow use of materials in beneficiary countries and should be granted after thorough examination of an application lodged by the beneficiary country concerned. Due to their sensitiveness, goods falling within Chapters 1 to 24 of the Harmonized System should be excluded from this type of cumulation.(13)Beneficiary countries have, since 2001, been permitted to cumulate origin with goods falling within Chapters 25 to 97 of the Harmonized System originating in Norway and Switzerland. This cumulation should be allowed to continue and extended to Turkey, provided Norway, Switzerland and Turkey apply the same definition of the concept of origin as the European Union and grant reciprocal treatment to products imported into them which were made using materials originating in the European Union. An agreement to this effect, including an undertaking that they shall provide Member States and each other with the necessary support in matters of administrative cooperation, should be concluded through an exchange of letters or any other suitable form of agreement between the parties.(14)Regional cumulation should however not cover certain materials where the tariff preference available in the European Union is not the same for all countries involved in the cumulation and the materials concerned would benefit, through cumulation, from a tariff treatment more favourable than the one they would benefit from if directly exported to the European Union. Not tackling such situations by means of exclusion of materials could lead to tariff circumvention or trade distortion by exporting goods to the European Union only from countries to which the most favourable tariff preference applies.(15)A list of materials excluded from regional cumulation is to be laid down in a separate annex. This annex may be amended not only when new such situations arise, but also in order to cover cases where such situations would arise as a result of the implementation of cumulation between countries of regional cumulation groups I and III.Cumulation of origin between countries in regional cumulation groups I and III and extended cumulation should be subject to specific conditions, whose fulfilment the Commission should verify before considering to grant cumulation, in accordance with the Committee procedure and on the basis of relevant considerations. On the same grounds, where use of such cumulation has been granted but it is subsequently established that the application of cumulation no longer fulfils the conditions or leads to unwarranted results, as for instance where it results in trade distortion or tariff circumvention, the Commission should remain at any time able to withdraw the grant to using such kinds of cumulation.(16)In the current rules of origin some provisions concerning fishery vessels catching fish outside territorial waters are complex to an extent which is disproportionate to their aim and are consequently difficult both to implement and to control. They should therefore be simplified.The current rules require evidence of direct transport to the European Union which is frequently difficult to obtain. Due to that requirement, some goods which are accompanied by a valid proof of origin cannot actually benefit from preference. It is therefore appropriate to introduce a new, simpler and more flexible rule which focuses on the aim that goods presented to customs upon declaration for release for free circulation in the European Union are the same ones that left the beneficiary country of export and have not been altered or transformed in any way en route.(17)At present, the authorities of beneficiary countries certify the origin of products and, where the declared origin proves to be incorrect, importers frequently do not have to pay duty because they acted in good faith and an error was made by the competent authorities. As a result, there is a loss to the European Union’s own resources and it is ultimately the European Union taxpayer who bears the burden. Since exporters are in the best position to know the origin of their products, it is appropriate to require that exporters directly provide their customers with statements on origin.(18)Exporters should be registered with the competent authorities of the beneficiary countries in order to facilitate targeted post-export controls. For this purpose, each beneficiary country should establish an electronic record of registered exporters, the contents of which should be communicated to the Commission by that beneficiary country’s competent governmental authority. On this basis the Commission should establish a central data-base of registered exporters for the benefit of administrations and operators in the European Union, through which operators should be able to check before declaring goods for release for free circulation that their supplier is a registered exporter in the beneficiary country concerned. Similarly, European Union operators making exports for the purpose of bilateral cumulation of origin should be registered with the competent authorities in the Member States.(19)Publication of numbers and non-confidential registration data of exporters should enable other parties to consult those data in order to facilitate transparency and increase information of interested parties. However, taking into account the consequences of publication, it should take place only where the exporter has freely given prior specific and informed written consent thereto.(20)Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such dataOJ L 281, 23.11.1995, p. 31. governs the processing of personal data carried out by Member States. The principles set out in Directive 95/46/EC should be clarified or supplemented in this Regulation where necessary.(21)Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such dataOJ L 8, 12.1.2001, p. 1. governs the processing of personal data activities carried out by the Commission. The principles set out in Regulation (EC) No 45/2001 should be clarified or supplemented in this Regulation where necessary.(22)Pursuant to Article 28 of Directive 95/46/EC, the national supervisory authorities should monitor the lawfulness of the processing of personal data by Member States, while, pursuant to Article 46 of Regulation (EC) No 45/2001, the European Data Protection Supervisor should monitor the activities of the European Union institutions and bodies in relation to the processing of personal data. The European Data Protection Supervisor and the national supervisory authorities, acting within the scope of their respective competences, should cooperate actively and ensure coordinated supervision of processing carried out in pursuance of this Regulation.(23)The introduction of the system of registered exporters needs to take account of the capacity of beneficiary countries to set up and manage the registration system as well as the capacity of the Commission to set up the necessary central data-base. For that purpose, the Commission still needs to establish the system’s user requirements and technical specifications. Once the detailed architecture of the central data-base is established, the precise implications of the system of registered exporters, notably in terms of access to data and data protection, will be assessed and necessary adjustments to the relevant provisions will be implemented. The implementation of the system should therefore be deferred until 1 January 2017 which should allow for the development phase, once user requirements and technical specifications are established and possible legal adjustments implemented as found necessary in the light of the system’s users requirements and technical specifications and their implications in terms of data protection. An additional three year period should moreover be provided for countries which cannot meet this deadline.Until 2017 and beyond this date for beneficiary countries not then in a position to apply the new system, transitional rules concerning the procedures and methods of administrative cooperation should be laid down, based on the provisions which have applied hitherto. In particular, those transitional provisions should provide for the issue of proof of origin by the competent authorities of the country concerned. Further, the existing rules should be streamlined by aligning their structure with the rules to be applied once the system of registered exporter is operational in order to make them clearer, in particular by clearly distinguishing general principles, procedures at export in the beneficiary country, procedures at release for free circulation in the European Union and methods of administrative cooperation. At the same time, the certificate of origin Form A, should be updated, in particular by replacing the notes related to the form by the 2007 version of those notes, since that version takes account of the EU’s last enlargement and therefore contains an updated list of countries which accept Form A for the purposes of GSP.(24)Access to the scheme should be conditional upon beneficiary countries putting into place and maintaining administrative structures permitting the efficient management of the scheme, and undertaking to provide all necessary support in the event of a request from the Commission for the monitoring of the proper management of the scheme. There needs in particular to be a system of administrative cooperation between the authorities in the European Union and in beneficiary countries which provides the framework for the verification of origin. At the same time, the responsibility of exporters in declaring origin as well as the role of administrative authorities in managing the system should be set out clearly. The contents of statements on origin should be specified, as well as the cases in which the customs authorities in the European Union may refuse to accept a statement or send it for verification.(25)The definitions and list of sufficient working or processing operations in the current provisions are common to GSP and preferential tariff measures adopted unilaterally by the European Union for certain countries or territories. Since the rules of origin of these latter arrangements will only be reformed at a later stage, the existing provisions should continue to apply to them. However, in the interests of coherence with GSP and other unilateral preferential trade arrangements, it is appropriate to align the definition of wholly obtained products and the list of insufficient working or processing operations laid down in those other unilateral arrangements with those of GSP rules of origin.(26)Regulation (EEC) No 2454/93 should therefore be amended accordingly.(27)By virtue of Commission Regulations (EC) No 1613/2000OJ L 185, 25.7.2000, p. 38., (EC) No 1614/2000OJ L 185, 25.7.2000, p. 46. and (EC) No 1615/2000OJ L 185, 25.7.2000, p. 54., the Community has granted derogations from GSP rules of origin for certain textile products originating in Laos, Cambodia and Nepal, which expire on 31 December 2010. The simpler and more development-friendly rules of origin introduced by this Regulation will render continuation of those derogations superfluous.(28)The measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee,HAS ADOPTED THIS REGULATION: