Explanatory Memorandum to COM(2023)548 - EU position in the Working Party on Customs Questions affecting Transport as regards the proposal to amend the Terms of Reference of the Working Party - Main contents
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| dossier | COM(2023)548 - EU position in the Working Party on Customs Questions affecting Transport as regards the proposal to amend the Terms of ... |
|---|---|
| source | COM(2023)548  |
| date | 28-09-2023 |
This proposal concerns the decision establishing the position to be taken on the Union's behalf in the Working party on Customs Questions affecting Transport (WP.30) in connection with the envisaged adoption of several amendments to the Terms of Reference (ToR) of the Working Party.
2.1.The Terms of Reference of the Working Party
The Terms of Reference of the Working Party (“WP.30 ToR”) aims to state the objectives, scope and functioning of the Working Party. They entered into force on October 2017 1 .
2.2.The Working party on Customs Questions affecting Transport
The Working party on Customs Questions affecting Transport (WP.30) acts within the framework of the policies of the United Nations and the Economic Commission for Europe (ECE) and subject to the general supervision of the Inland Transport Committee (ITC).
More specifically, the WP.30 initiates and pursues actions aimed at the harmonisation and simplification of regulations, rules and documentation for border crossing procedures for inland transport in connection with the United Nation’s 2030 Sustainable Development Agenda.
In addition, the WP.30 administers and monitors the implementation of the Conventions and Agreements on customs and border crossing facilitations under its auspices 2 . It also promotes possible extensions of those legal instruments to other regions and encourages the accession of new countries. At last, it cooperates with the Administrative Committees for the TIR Convention (AC.2), the Harmonization Convention (AC.3) and the Convention on Customs Treatment of Pool Containers Used in International Transport (AC.4).
The Working party’s participants are the member countries of the ECE and non-member countries of ECE which are Contracting Parties to the legal instrument under WP.30 auspices. Each participant shall have one vote and decisions regarding a legal instrument in force shall be taken only in the presence of at least one-third of the Contracting Parties. Decisions shall normally be taken by consensus. In the absence of consensus, decisions shall be taken by a majority of the participants present and voting.
The Union has exclusive competence in the area of customs. However, the Union, as a customs and economic union, does not have voting rights in addition to those of its Member States. All Member States are parties with voting rights.
2.3.The envisaged act of the Working party on Customs Questions affecting Transport
In October 2023, during its 164th session or a following one, the Working party on Customs affecting Transport is to adopt several amendments regarding its Terms of Reference (“WP.30 ToR”).
The purpose of the new WP.30 ToR is to align its wording with the new Terms of Reference of the Inland transport Committee (ITC ToR) 3 which have been endorsed by the United Nation’s Economic and Social Council (ECOSOC) 4 .
The WP.30 ToR will be applicable as of the moment of their adoption by the WP.30.
3.Position to be taken on the Union's behalf
While the United Nations Economic Commission for Europe (UNECE) is a regional United Nation organisation, some of its activities have global relevance.
On 21 February 2017, the ITC adopted a ministerial resolution, signed by Commissioner Violeta Bulc, on embracing the new era for sustainable inland transport and mobility, which stressed ITC’s role as a comprehensive regional and global platform for consideration of all the aspects of inland transport development and cooperation. In particular, the ministers called upon the ITC and its subsidiary bodies to work towards improved regional and inter-continental connectivity with special attention to Euro-Asia transport link projects, as well as participation in the One Belt and One Road Initiative through policy coordination, and facilitation of seamless transport.
To reflect the global role of the ITC and its subsidiary body, the ToR and Rules of Procedures (RoP) of the ITC have been amended in order to adopt the so-called hybrid approach for membership, meaning that non-ECE member States including non-United Nation member(s) can participate as full members in segments of the ITC sessions that deal with legal instruments to which they are contracting parties and remain in a consultative capacity in other parts.
Consequently, WP.30, being a subsidiary body of ITC, prepared amendments to its ToR.
The Union support the proposal for amendments.
In particular, the Union agrees with the transformation of the title of the Working Party into a “Global Forum on Customs questions affecting transport including border crossing facilitation”. This new name will acknowledge the global scope of the work of the Working Party on customs questions as well as underline its role in border crossing facilitation.
In addition, the Union accepts the inclusion of the reference of the Inland transport Committee in the new Terms of Reference which will allow the participation of non-United Nation member(s) to the future Global forum. This new reference will replace the reference to the Terms of Reference of the Economic Commission for Europe (ECE) which were only allowing United Nation member(s), members of ECE or contracting party to a Convention under the auspices of the Working Party, to participate to meeting(s).
At last, the Union supports several editorial amendment proposals to clarify the role, the tasks and the relation of the future Global Forum with other inter-governmental and non-governmental organisations.
The draft act, including the proposed amendments, is attached to the annex of the Council decision proposal.
4.Legal basis
4.1.Procedural legal basis
4.1.1.Principles
Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.’
The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the rules of international law governing the body in question. It also includes instruments that do not have a binding effect under international law, but that are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’ 5 .
4.1.2.Application to the present case
The Working Party on Customs Questions affecting Transport is a body set up by the Inland transport Committee of the Economic Commission for Europe established in conformity with a decision of the Economic and Social Council of the United Nations 6 .
The act which the Working Party on Customs Questions affecting Transport is called upon to adopt constitutes an act having legal effects. The envisaged act is capable of decisively influencing the content of EU legislation, namely: customs, transport and border crossing facilitations. This is because EU Member states, and sometime the European Union, are contracting parties of most of the United Nation Conventions under the auspices of the WP.30.
The envisaged act does not supplement or amend the institutional framework of the Agreement.
Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU.
4.2.Substantive legal basis
4.2.1.Principles
The substantive legal basis for a decision under Article 218(9) TFEU depends primarily on the objective and content of the envisaged act in respect of which a position is taken on the Union's behalf. If the envisaged act pursues two aims or has two components and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the decision under Article 218(9) TFEU must be founded on a single substantive legal basis, namely that required by the main or predominant aim or component.
4.2.2.Application to the present case
The main objective and content of the envisaged act relate to common commercial policy.
Therefore, the substantive legal basis of the proposed decision is the first subparagraph of Article 207 i TFUE.
4.3.Conclusion
The legal basis of the proposed decision should be the first subparagraph of Article 207 i TFUE, in conjunction with Article 218(9) TFEU.