Legal provisions of COM(2015)282 - Application of the arrangements for products from certain ACP states provided for in agreements establishing Economic Partnership Agreements (recast)

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dossier COM(2015)282 - Application of the arrangements for products from certain ACP states provided for in agreements establishing Economic ...
document COM(2015)282 EN
date June  8, 2016

Contents

CHAPTER I - SUBJECT MATTER, SCOPE AND MARKET ACCESS


Article 1

Subject matter

This Regulation applies the arrangements for products originating in certain states which are part of the African, Caribbean and Pacific (ACP) Group of States provided for in agreements establishing, or leading to the establishment of, economic partnership agreements.

Article 2

Scope

1. This Regulation applies to products originating in the regions and states listed in Annex I.

2. The Commission is empowered to adopt delegated acts in accordance with Article 22 to amend Annex I in order to add regions or states from the ACP Group of States which have concluded negotiations on an agreement with the Union which at least meets the requirements of Article XXIV of the General Agreement of Tariffs and Trade 1994 (GATT 1994).

3. A region or state shall remain on the list in Annex I unless the Commission adopts a delegated act in accordance with Article 22 amending Annex I to remove that region or state from that Annex, in particular where:

(a)the region or state indicates that it intends not to ratify an agreement which has permitted it to be included in Annex I;

(b)ratification of an agreement which has permitted a region or state to be included in Annex I has not taken place within a reasonable period of time such that the entry into force of the agreement is unduly delayed; or

(c)the agreement is terminated, or the region or state concerned terminates its rights and obligations under the agreement, but the agreement otherwise remains in force.

Article 3

Delegation of power

The Commission is empowered to adopt delegated acts in accordance with Article 22 to amend Annex I to this Regulation by reinstating those regions or states from the ACP Group of States which were removed from Annex I to Regulation (EC) No 1528/2007 by Regulation (EU) No 527/2013 and which have, since such removal, taken the necessary steps towards ratification of their respective agreements.

Article 4

Market access

1. Import duties shall be eliminated on all products of Chapters 1 to 97, with the exception of Chapter 93, of the Harmonised System originating in a region or state listed in Annex I. Such elimination shall be subject to the general safeguard mechanism provided for in Articles 9 to 20.

2. For products of Chapter 93 of the Harmonised System originating in regions or states listed in Annex I, the most-favoured-nation duties applied shall continue to apply.

3. Paragraph 1 shall not apply to products originating in South Africa. Such products shall be subject to the relevant provisions of the TDCA. The Commission is empowered to adopt delegated acts in accordance with Article 22 to add an Annex to this Regulation setting out the regime applicable to products originating in South Africa once the relevant trade provisions of the TDCA have been superseded by the relevant provisions of an agreement establishing, or leading to the establishment of, an EPA.

4. Paragraph 1 shall not apply to products under tariff heading 0803 00 19 originating in a region or state listed in Annex I and released for free circulation in the outermost regions of the Union until 1 January 2018. Paragraph 1 of this Article and Article 8 shall not apply to products under tariff heading 1701 originating in a region or state listed in Annex I and released for free circulation in the French overseas departments until 1 January 2018. Those periods shall be extended to 1 January 2028 unless otherwise agreed between the Parties to the relevant agreements. The Commission shall publish a notice in the Official Journal of the European Union informing interested parties of the expiry of this provision.

CHAPTER II - RULES OF ORIGIN AND ADMINISTRATIVE COOPERATION


Article 5

Rules of origin

1. The rules of origin set out in Annex II shall apply in determining whether products originate in the regions or states listed in Annex I.

2. The rules of origin set out in Annex II shall be superseded by those annexed to any agreement with the regions or states listed in Annex I when that agreement is either provisionally applied, or enters into force, whichever is the earlier. The Commission shall publish a notice in the Official Journal of the European Union to inform operators of the date of provisional application or entry into force, from which the rules of origin in the agreement are to apply to products originating in the regions and states listed in Annex I.

3. The Commission is empowered to adopt delegated acts in accordance with Article 22 concerning technical amendments to Annex II where required to take account of amendments to other Union customs legislation.

4. Decisions on the management of Annex II shall be adopted in accordance with the examination procedure referred to in Article 19(5).

Article 6

Administrative cooperation

1. Where the Commission has made a finding, on the basis of objective information, of a failure to provide administrative cooperation or of irregularities or fraud, it may temporarily suspend the elimination of duties provided for in Articles 4, 7 and 8 (‘the relevant treatment’) in accordance with this Article.

2. For the purpose of this Article, a failure to provide administrative cooperation means, inter alia:

(a)a repeated failure to respect relevant obligations requiring the verification of the originating status of the product or products concerned;

(b)a repeated refusal or undue delay in carrying out or communicating the results of subsequent verification of the proof of origin;

(c)a repeated refusal or undue delay in obtaining authorisation to conduct administrative cooperation missions to verify the authenticity of documents or accuracy of information relating to the granting of the relevant treatment.

For the purpose of this Article, a finding of irregularities or fraud may be made, inter alia, where there is a rapid increase, without satisfactory explanation, in imports of goods exceeding the usual level of production and export capacity of the region or state concerned.

3. Where the Commission, on the basis of information provided by a Member State or on its own initiative, finds that the conditions laid down in paragraphs 1 and 2 of this Article are met, the relevant treatment may be suspended in accordance with the advisory procedure referred to in Article 19(4), provided that the Commission has first:

(a)informed the Committee referred to in Article 19(2);

(b)notified the region or state concerned in accordance with any relevant procedures applicable between the Union and that state or region; and

(c)published a notice in the Official Journal of the European Union stating that a finding has been made of a failure to provide administrative cooperation or of irregularities or fraud.

4. The period of suspension under this Article shall be no longer than is necessary to protect the Union's financial interests. That period shall not exceed six months, but may be renewed. At the end of that period, the Commission shall decide either to terminate the suspension or to extend the period of suspension in accordance with the advisory procedure referred to in Article 19(4).

5. The temporary suspension procedures set out in paragraphs 2, 3 and 4 shall be superseded by those set out in any agreement with the regions or states listed in Annex I when that agreement is either provisionally applied or enters into force, whichever is the earlier. The Commission shall publish a notice in the Official Journal of the European Union to inform operators of the date of provisional application or entry into force, from which the temporary suspension procedures in the agreement are to apply to products covered by this Regulation.

6. In order to implement the temporary suspension provided for in any agreement with the regions or states listed in Annex I, the Commission shall, without undue delay:

(a)inform the Committee referred to in Article 19(2) that a finding has been made of a failure to provide administrative cooperation or of irregularities or fraud; and

(b)publish the notice in the Official Journal of the European Union stating that a finding has been made of a failure to provide administrative cooperation or of irregularities or fraud.

The decision suspending the relevant treatment shall be adopted in accordance with the advisory procedure referred to in Article 19(4).

CHAPTER III - TRANSITIONAL ARRANGEMENTS


SECTION 1

Rice

Article 7

Zero-duty tariff rate

No import duties shall be imposed on the products under tariff heading 1006.

SECTION 2

Sugar

Article 8

Zero-duty tariff rate

No import duties shall be imposed on products under tariff heading 1701.

CHAPTER IV - GENERAL SAFEGUARD PROVISIONS


Article 9

Definitions

For the purposes of this Chapter, the following definitions apply:

(a)‘Union industry’ means the Union producers as a whole of the like or directly competitive products operating within the territory of the Union, or those Union producers whose collective output of the like or directly competitive product constitutes a major proportion of the total Union production of those products;

(b)‘serious injury’ means a significant overall impairment in the position of the Union industry;

(c)‘threat of serious injury’ means serious injury that is clearly imminent;

(d)‘disturbances’ means disorders in a sector or industry;

(e)‘threat of disturbances’ means disturbances that are clearly imminent.

Article 10

Principles

1. A safeguard measure may be imposed in accordance with the provisions set out in this Chapter where products originating in regions or states listed in Annex I are being imported into the Union in such increased quantities and under such conditions as to cause or threaten to cause any of the following:

(a)serious injury to Union industry;

(b)disturbances in a sector of the economy, particularly where those disturbances produce major social problems or difficulties which could bring about serious deterioration in the economic situation of the Union; or

(c)disturbances in the markets of agricultural products covered by Annex I to the WTO Agreement on Agriculture or mechanisms regulating those markets.

2. In cases where products originating in regions or states listed in Annex I are being imported into the Union in such increased quantities and under such conditions as to cause or threaten to cause disturbances in the economic situation of one or several of the outermost regions of the Union, a safeguard measure may be imposed in accordance with the provisions set out in this Chapter.

Article 11

Determination of the conditions to impose safeguard measures

1. The determination of serious injury or a threat thereof shall cover, inter alia, the following factors:

(a)the volume of imports, in particular where there has been a significant increase, either in absolute terms or relative to production or consumption in the Union;

(b)the price of imports, in particular where there has been a significant price undercutting in comparison with the price of a like product in the Union;

(c)the consequent impact on Union industry as indicated by trends in certain economic factors such as production, capacity utilisation, stocks, sales, market share, the depression of prices or prevention of price increases which would normally have occurred, profits, return on capital employed, cash flow and employment;

(d)factors other than trends in imports which are causing or may have caused injury to the Union industry concerned.

2. The determination of disturbances or a threat thereof shall be based on objective factors, including the following elements:

(a)the increase in the volume of imports in absolute terms or relative to production in the Union and to imports from other sources; and

(b)the effect of such imports on prices; or

(c)the effect of such imports on the Union industry or the economic sector concerned in relation to, inter alia, the levels of sales, production, financial situation and employment.

3. In determining whether imports are made under such conditions as to cause or threaten to cause disturbances in the markets of agricultural products or mechanisms regulating those markets, including regulations creating common market organisations (CMOs), all relevant objective factors shall be taken into consideration, including one or more of the following elements:

(a)the volume of imports in comparison with that in previous calendar or marketing years, as the case may be, internal production and consumption, and future levels planned in accordance with the reform of CMOs;

(b)the level of internal prices in comparison with the reference or target prices, if applicable, and, if not applicable, in comparison with the average internal market prices during the same period of previous marketing years;

(c)in the markets for products under tariff heading 1701, situations where during two consecutive months the average Union market price of white sugar falls below 80 % of the average Union market price for white sugar during the previous marketing year.

4. In determining whether the conditions referred to in paragraphs 1, 2 and 3 are met in the case of the outermost regions of the Union, the analyses shall be restricted to the territory of the outermost region or regions concerned. Particular attention shall be paid to the size of the local industry, its financial situation and the employment situation.

Article 12

Initiation of proceedings

1. An investigation shall be initiated upon request by a Member State or on the Commission's own initiative if it is apparent to the Commission that there is sufficient evidence to justify such initiation.

2. The Member States shall inform the Commission if trends in imports from any of the regions or states listed in Annex I appear to call for safeguard measures. That information shall include the evidence available, as determined on the basis of the criteria laid down in Article 11. The Commission shall pass that information on to all Member States within three working days of receipt thereof.

3. Where it is apparent that there is sufficient evidence to justify the initiation of proceedings, the Commission shall publish a notice in the Official Journal of the European Union. Proceedings shall be initiated within one month of the date of receipt of information from a Member State.

The Commission shall inform the Member States of its analysis of the information normally within 21 days of the date on which the information was provided to the Commission.

4. If the Commission takes the view that any of the circumstances set out in Article 10 exist, it shall immediately notify the region or state listed in Annex I concerned of its intention to initiate an investigation. The notification may be accompanied by an invitation for consultations with a view to clarifying the situation and arriving at a mutually satisfactory solution.

Article 13

Investigation

1. Following the initiation of proceedings, the Commission shall commence an investigation.

2. The Commission may request Member States to provide information, and Member States shall take whatever steps are necessary in order to give effect to any such request. Where that information is of general interest or where its transmission was requested by a Member State, the Commission shall forward it to all Member States provided that it is not confidential; if it is confidential, the Commission shall forward a non-confidential summary.

3. In the event of an investigation restricted to an outermost region of the Union, the Commission may request the competent local authorities to provide the information referred to in paragraph 2 via the Member State concerned.

4. The investigation shall, whenever possible, be concluded within six months of its initiation. In exceptional circumstances, that time limit may be extended by a further period of three months.

Article 14

Imposition of provisional safeguard measures

1. Provisional safeguard measures shall be applied in critical circumstances where a delay would cause damage which would be difficult to repair, pursuant to a preliminary determination that any of the circumstances set out in Article 10 exist. Such provisional safeguard measures shall be adopted in accordance with the advisory procedure referred to in Article 19(4), or, in cases of urgency, in accordance with Article 19(6).

2. In view of the particular situation of outermost regions of the Union and their vulnerability to any surge in imports, provisional safeguard measures shall be applied in proceedings that concern them where a preliminary determination has shown that imports have increased. Those provisional safeguard measures shall be adopted in accordance with the advisory procedure referred to in Article 19(4), or, in cases of urgency, in accordance with Article 19(6).

3. Where a Member State requests immediate intervention by the Commission and where the conditions laid down in paragraph 1 or 2 are met, the Commission shall take a decision within five working days of receipt of the request.

4. Provisional safeguard measures may take the form of an increase in the customs duty on the product concerned up to a level which does not exceed the customs duty applied to other WTO members, or tariff quotas.

5. Provisional safeguard measures shall not apply for more than 180 days. Where provisional measures are restricted to outermost regions, they shall not apply for more than 200 days.

6. If the provisional safeguard measures are repealed because the investigation shows that the conditions laid down in Articles 10 and 11 are not met, any duty collected as a result of those measures shall be refunded automatically.

Article 15

Termination of proceedings and investigations without measures

Where safeguard measures are deemed unnecessary, the proceedings and investigations shall be terminated in accordance with the examination procedure referred to in Article 19(5).

Article 16

Imposition of definitive safeguard measures

1. Where the facts as finally established show that any of the circumstances set out in Article 10 exist, the Commission shall request consultations with the region or state concerned in the context of the appropriate institutional arrangement set up in the relevant agreements permitting a region or state to be included in Annex I, with a view to seeking a mutually satisfactory solution.

2. If the consultations referred to in paragraph 1 of this Article do not lead to a mutually satisfactory solution within 30 days of the matter being referred to the region or state concerned, a decision to impose definitive safeguard measures shall be taken by the Commission in accordance with the examination procedure referred to in Article 19(5) within 20 working days of the end of the consultation period.

3. Definitive safeguard measures may take one of the following forms:

(a)a suspension of the further reduction of the rate of import duty for the product concerned originating in the region or state concerned;

(b)an increase in the customs duty on the product concerned up to a level which does not exceed the customs duty applied to other WTO members;

(c)a tariff quota.

4. No definitive safeguard measure shall be applied on the same product from the same region or state less than one year after previous such measures have lapsed or been removed.

Article 17

Duration and review of safeguard measures

1. A safeguard measure shall remain in force only for such period of time as may be necessary to prevent or remedy the serious injury or disturbances. That period shall not exceed two years, including the duration of any provisional measure, unless it is extended in accordance with paragraph 2. Where the measure is restricted to one or several of the outermost regions of the Union, the period of application may not exceed four years.

2. The initial period of duration of a safeguard measure may exceptionally be extended provided that it is determined that the safeguard measure continues to be necessary to prevent or remedy serious injury or disturbances.

3. Extensions shall be adopted in accordance with the procedures set out in this Regulation applicable to investigations using the same procedures as the initial measures.

The total duration of a safeguard measure may not exceed four years, including any provisional measure. In the event of a measure restricted to one or several of the outermost regions of the Union, that limit shall be extended to eight years.

4. If the duration of a safeguard measure exceeds one year, it shall be progressively liberalised at regular intervals during its period of application, including any extension.

Consultations with the region or state concerned shall be held periodically in the appropriate institutional bodies set up under the relevant agreements, with a view to establishing a timetable for the abolition of safeguard measures as soon as circumstances permit.

Article 18

Surveillance measures

1. Where the trend in imports of a product originating in an ACP State is such that such imports could cause any of the circumstances referred to in Article 10, imports of that product may be made subject to prior Union surveillance.

2. The decision to impose surveillance shall be taken by the Commission in accordance with the advisory procedure referred to in Article 19(4).

3. Surveillance measures shall have a limited period of validity. Unless otherwise provided, they shall cease to be valid at the end of the second six-month period following the first six months after the measures were introduced.

4. Surveillance measures may be restricted to the territory of one or several of the outermost regions of the Union, where necessary.

5. The decision to impose surveillance measures shall be communicated immediately to the appropriate institutional body set up in the relevant agreements permitting a region or state to be included in Annex I.

Article 19

Committee procedure

1. For the purposes of Articles 14, 15, 16 and 18 of this Regulation, the Commission shall be assisted by the Committee on Safeguards established by Article 3(1) of Regulation (EU) 2015/478 of the European Parliament and of the Council (11). That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2. For the purposes of Articles 5 and 6 of this Regulation and for the purposes of Article 6(11) and (13) and Article 36(4) of Annex II to this Regulation, the Commission shall be assisted by the Customs Code Committee established by Article 285(1) of Regulation (EU) No 952/2013 of the European Parliament and of the Council (12). That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

3. For the purposes of Articles 7 and 8 of this Regulation, the Commission shall be assisted by the Committee for the Common Organisation of the Agricultural Markets established by Article 229(1) of Regulation (EU) No 1308/2013 of the European Parliament and of the Council (13). That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

4. Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.

5. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

6. Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 4 thereof, shall apply.

Article 20

Exceptional measures with limited territorial application

Where it emerges that the conditions laid down for the adoption of safeguard measures are met in one or more Member States, the Commission, after having examined alternative solutions, may exceptionally authorise the application of surveillance or safeguard measures restricted to the Member State or Member States concerned if it considers that such measures applied at that level are more appropriate than measures applied throughout the Union. Such measures shall be of a strictly limited duration and, insofar as possible, shall not disrupt the operation of the internal market.

CHAPTER V - PROCEDURAL PROVISIONS


Article 21

Adaptation to technical developments

The Commission is empowered to adopt delegated acts in accordance with Article 22 concerning technical amendments to Article 6 and Articles 9 to 20 which may be required as a result of differences between this Regulation and agreements signed with provisional application or concluded in accordance with Article 218 TFEU with the regions or states listed in Annex I.

Article 22

Exercise of the delegation

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 3 shall be conferred on the Commission for a period of five years from 21 June 2013. The power to adopt delegated acts referred to in Article 2(2) and (3), Article 4(3), Article 5(3) and Article 21 shall be conferred on the Commission for a period of five years from 20 February 2014. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

3. The delegation of power referred to in Article 2(2) and (3), Article 3, Article 4(3), Article 5(3) and Article 21 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

6. A delegated act adopted pursuant to Article 3, Article 4(3), Article 5(3) or Article 21 shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.

7. A delegated act adopted pursuant to Article 2(2) and (3) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by four months at the initiative of the European Parliament or of the Council.

Article 23

Report

The Commission shall include information on the implementation of this Regulation in its annual report on the application and implementation of trade defence measures presented to the European Parliament and to the Council pursuant to Article 22a of Council Regulation (EC) No 1225/2009 (14).

CHAPTER VI - FINAL PROVISIONS


Article 24

Repeal

Regulation (EC) No 1528/2007 is repealed.

References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table set out in Annex IV.

Article 25

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.