Explanatory Memorandum to COM(2024)559 - - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2024)559 - . |
|---|---|
| source | COM(2024)559 |
| date | 29-11-2024 |
1. Subject matter of the proposal
This proposal concerns the decision establishing the position to be taken on the European Union’s behalf in the Customs Cooperation Committee. The Committee was established under the Association Agreement between the European Community and Turkey, signed at Ankara on 12 September 1963 (Association Agreement). The position to be taken by the EU in the Customs Cooperation Committee concerns the envisaged adoption of a Committee decision on the use of A.TR movement certificates issued electronically.
2. Context of the proposal
2.1. The customs union between the EU and Türkiye
One of the aims of the Association Agreement is to promote the continuous and balanced strengthening of trade and economic relations between the European Union and Türkiye. To attain its objectives, the Association Agreement provides for a customs union. The rules for implementing the final phase of the customs union are laid down in Decision No 1/95 of the EC–Turkey Association Council of 22 December 19950 (known as the ‘basic Decision’), which establishes the conditions for the free movement of goods between the Parties.
Decision No 1/2006 of the Customs Cooperation Committee of 26 July 20060 (known as the ‘bridging legislation’) lays down implementing customs provisions for Decision 1/95, applicable to trade in goods between the Parties of the customs union and with third countries and establishes that the documentary evidence that the conditions for implementing the provisions on free circulation laid down in the basic Decision are met, shall be the A.TR movement certificate, the specimen of which is contained in Annex I to the same Decision.
2.2. The Customs Cooperation Committee
The Customs Cooperation Committee was established by Decision No 2/69 of the Association Council of 15 December 19690. Article 2 of that Decision stipulates that the Customs Cooperation Committee is responsible for ensuring administrative cooperation between the Parties with a view to ensure the correct and uniform application of the customs provisions of the Association Agreement and for carrying out any other tasks in the customs field which the Association Committee may entrust to it.
2.3. The envisaged act of the Customs Cooperation Committee
At its next meeting or by exchange of letters, the Customs Cooperation Committee is to adopt a decision regarding the use of A.TR movement certificates issued electronically (‘the envisaged act’).
The purpose of the envisaged act is to provide the customs authorities of the Parties with a sound legal framework for accepting movement certificates issued electronically when submitted at importation in the context of the EU–Türkiye customs union.
3. Position to be taken on the Union’s behalf
During the COVID-19 pandemic, the Commission issued Information note No 1 dated 31 March 2020 inviting the customs authorities of the EU Member States and of the EU partner countries to accept movement certificates issued electronically with a digital signature, stamp or cachet of the competent authorities, or a copy in paper or electronic form (scanned or available online). These measures were also applicable to the A.TR movement certificates for the purpose of free circulation of goods within the EU–Türkiye customs union.
Since the exceptional circumstances that led to the adoption of these flexible measures were no longer considered relevant, it was decided that the measures in place were no longer applicable as of 1 May 2024.
However, the EU and Türkiye acknowledge that the experience of trade under the measures adopted due to the COVID-19 pandemic was positive and consider it appropriate to establish a proper legal framework to re-introduce these good practices.
Pending the adoption of the envisaged act, the Parties agreed to accept electronically issued A.TR movement certificates (in particular those issued by the Turkish authorities using their MEDOS system and without wet-ink signature) starting from 8 July 2024, provided that the act to be adopted has a retroactive effect as of that date.
It is therefore appropriate to provide for retroactive application of the envisaged act as of 8 July 2024 to ensure continuity in the good practices re-established as of that date.
The envisaged act constitutes a legal basis for the acceptance of A.TR movement certificates issued electronically. However, it does not establish any obligation for the Parties to issue A.TR movement certificates electronically. At the moment the EU has no electronic system for issuance of certificates, therefore EU Member States will continue to issue A.TR certificates on paper. Hence, even if an A.TR certificate is electronically issued, its submission to the EU MS as importing country will be still done on paper or sent electronically in pdf format. The validity and authenticity of such certificates will be verified by customs officials manually.
DG TAXUD envisages to develop a central solution for digitalising all paper-based procedures enabling Economic Operators and Customs Authorities to proceed with issuance of movement certificates digitally. Once the EU system of electronic certificate of proofs of origin will be developed and deployed by Commission, Member States are expected to connect with the system via EU CSW-CERTEX to streamline the work of customs officials. A legal base is needed for the establishment of a central IT solution for issuance and validation of certificates by the EU Member States.
This position would be consistent with the position taken by the EU in the Joint Committee of the Regional Convention on pan-Euro-Mediterranean preferential rules of origin (‘the PEM Joint Committee’) in connection with the envisaged adoption of a PEM Joint Committee Recommendation as regards the use of movement certificates issued electronically. The EU’s position in the PEM Joint Committee was based on the same assumptions and was pursuing the same objectives.
The position to be taken by the European Union in the Customs Cooperation Committee should be established by the Council.
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 effect’ 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’0.
4.1.2. Application to the present case
The Customs Cooperation Committee is a body set up by an agreement, namely the Association Agreement between the European Community and Turkey.
The act which the Customs Cooperation Committee is called upon to adopt constitutes an act having legal effects. The envisaged act will become applicable in the Parties in accordance with Article 24 of the Association Agreement and Article 28, paragraphs 1 and 3 of Decision No 1/95 of the EC–Turkey Association Council of 22 December 1995.
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.
4.2.2. Application to the present case
The main objective and content of the envisaged act relate to the common commercial policy and to the implementation of the EU–Türkiye customs union. The envisaged act is therefore intended to facilitate trade between the Parties by establishing flexible measures related to the use of A.TR movement certificates issued electronically when submitted at importation.
The legal basis of the proposed decision should be Article 207 i, first subparagraph, in conjunction with Article 218(9) TFEU.
4.3. Conclusion
The legal basis of the proposed decision should be Article 207 i, first subparagraph, in conjunction with Article 218(9) TFEU.
5. Publication of the envisaged act
As the act of the Customs Cooperation Committee will be applicable by both Parties, including the EU and its Member States, it is appropriate to publish it in the Official Journal of the European Union after its adoption.