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Document 52021PC0006
Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the EU-CTC Joint Committee established by the Convention of 20 May 1987 on a common transit procedure as regards amendments to that Convention
Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the EU-CTC Joint Committee established by the Convention of 20 May 1987 on a common transit procedure as regards amendments to that Convention
Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the EU-CTC Joint Committee established by the Convention of 20 May 1987 on a common transit procedure as regards amendments to that Convention
COM/2021/6 final
EUROPEAN COMMISSION
Brussels, 13.1.2021
COM(2021) 6 final
2021/0002(NLE)
Proposal for a
COUNCIL DECISION
on the position to be taken on behalf of the European Union in the EU-CTC Joint Committee established by the Convention of 20 May 1987 on a common transit procedure as regards amendments to that Convention
EXPLANATORY MEMORANDUM
1.Subject matter of the proposal
This proposal concerns the decision establishing the position to be taken on the Union's behalf in the EU-CTC 1 Joint Committee on common transit (‘the Joint Committee‘) in connection with the envisaged adoption of a decision amending the Appendices to the Convention of 20 May 1987 on a common transit procedure 2 (‘the Convention’).
2.Context of the proposal
2.1.The Convention
The Convention aims to facilitate the movements of goods between the European Union and other countries that are Contracting Parties to the Convention. It extends the Union customs transit procedure 3 to the Contracting parties to the Convention other than the European Union and sets out the obligations on traders and customs authorities for goods transported under this procedure from one Contracting Party to another. It entered into force on 1 January 1988.
The European Union is a Contracting Party to the Convention. The other Contracting Parties are the Republic of Iceland, the Republic of North Macedonia, the Kingdom of Norway, the Republic of Serbia, the Swiss Confederation and the Republic of Turkey. Those countries are referred to in the Convention as common transit countries.
2.2.The Joint Committee
The task of the Joint Committee is to administer the Convention and to ensure its proper implementation. The Committee, by means of decisions, adopts amendments to the Appendices to the Convention.
The Joint Committee's decisions are adopted by mutual agreement 4 by the Contracting Parties as stipulated by Article 14 (2) of the Convention.
2.3.The envisaged act of the Joint Committee
In early 2021 the Joint Committee is to adopt by means of a written procedure a decision regarding the amendment of the Appendices I and III of the Convention (‘the envisaged act’).
The purpose of the envisaged act is to align the Convention with provisions in the Union Customs Code (’UCC’) 5 and its Delegated and Implementing Acts concerning the transit procedure and the customs status of Union goods, as well as to bring necessary changes to the appendices of the Convention following the withdrawal of the UK from the Union 6 and the UK’s accession to the Convention. They are as follows:
Article 311 of Commission Implementing Regulation (EU) 2015/2447 7 (‘the Implementing Act’), which lays down the request to transfer the recovery of the customs debt was amended in September 2019 8 . The amendment set the rules for the request to transfer the recovery where the customs authority of a country involved in a transit operation obtains evidence that the events giving rise to the debt occurred in its territory. In these cases, that authority should request the country of departure to transfer to it the responsibility to start the recovery. The country of departure should confirm within a certain period whether it transfers the competency to start the recovery to the requesting customs authority. Therefore, Article 50 of the Appendix I to the Convention, which replicates Article 311 of the Implementing Act, should be amended accordingly.
Annex 72-04 of the Implementing Act, which describes the business continuity procedure for Union transit was amended and applied from 30 June 2020 9 . In order to allow for more flexibility in the business continuity procedure in transit and to reduce the formalities and costs incurred by the customs authorities, the validity of the paper comprehensive guarantee certificates and guarantee waiver certificates were prolonged. Article 79 of Appendix I to the Convention and Point 19.3., Chapter III, Annex II of Appendix I to the Convention, which mirrors point 19.3, Chapter III, Part I, Annex 72-04 of the Implementing Act, should be amended accordingly.
When the UCC ceases to apply to and in the United Kingdom, with the exception of Northern Ireland, the United Kingdom will accede to the Convention as a separate Contracting Party 10 and the Protocol on Ireland/Northern Ireland annexed to the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community 11 will apply. The Convention contains references to EU Members States, common transit countries and the respective country codes. It is therefore necessary to make appropriate changes to the Appendix III of the Convention to distinguish the United Kingdom in respect of Northern Ireland and indicate that the UCC, in particular as regards the guarantee provisions, applies in Northern Ireland.
The EU position on the draft Joint Committee Decision concerning the further amendments to the Convention is based on EU rules that were already agreed by the Council (in particular in the provisions of the Union Customs Code delegated and implementing acts). The content related to the application of the Protocol on Ireland/Northern Ireland is in line with that Protocol.
The envisaged act will become binding on the parties in accordance with Article 2 of that Decision, which provides for its entry into force on the day of its adoption.
The provisions related to the validity of the paper comprehensive guarantee certificates and guarantee waiver certificates should apply retroactively from 30 June 2020. Equal conditions should be granted to guarantors under the Union law and the Convention. The extended validity period of the certificates is already in effect from 30 June 2020 in the Union customs legislation.
The provisions related to the application of the Protocol on Ireland/Northern Ireland will apply from the moment when the UCC ceases to apply to and in the United Kingdom, with the exception of Northern Ireland where the UCC will continue to apply after that date, and the United Kingdom accedes to the Convention as a separate Contracting Party.
In accordance with Article 15(3) of the Convention, decisions amending the Convention are to be put into effect by the Contracting Parties in accordance with their own legislation.
3.Position to be taken on the Union's behalf
The proposed position to be taken on behalf of the Union is to amend the Appendices I and III to the Convention in order to align them with the following:
·the Union customs law governing the Union transit arrangements and, in particular, the amended Article 311 of Implementing Act, which lays down the request to transfer the recovery of the customs debt and Annex 72-04 of Implementing Act, with regard to the validity of the paper comprehensive guarantee and guarantee waiver certificates used in the business continuity procedure;
·the application of the Protocol on Ireland/Northern Ireland and, in particular, to distinguish the United Kingdom in respect of Northern Ireland where applicable.
The proposed position is consistent with the common commercial policy.
By ensuring full alignment of the Convention with the current Union legislation and, hence, creating uniform conditions for the consistent implementation of the provisions concerning the Union transit and the common transit procedure, the proposed amendments to the Convention, would result in substantial and tangible benefits for both traders and customs administrations.
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.’
Article 15(3) of the Convention stipulates that the EU-CTC Joint Committee adopts by decisions amendments to the Appendices to the Convention.
4.1.2.Application to the present case
The Joint Committee is a body set up by an agreement, namely the Convention on a common transit procedure.
The decision which the Joint Committee is called upon to adopt constitutes an act having legal effects. The envisaged act will be binding under international law in accordance with Articles 15(3) and 20 of the Convention.
The envisaged act does not supplement or amend the institutional framework of the Convention.
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 the objective of ensuring efficient border crossing procedures for goods. The main objective and content of the envisaged act therefore relates to the common commercial policy.
Therefore, the substantive legal basis of the proposed decision is Article 207 TFEU.
4.3.Conclusion
The legal basis of the proposed decision should be Article 207 TFEU, in conjunction with Article 218(9) TFEU.
5.Publication of the envisaged act
As the act of the Joint Committee will amend the Convention and its Appendices, it is appropriate to publish it in the Official Journal of the European Union after its adoption.
2021/0002 (NLE)
Proposal for a
COUNCIL DECISION
on the position to be taken on behalf of the European Union in the EU-CTC Joint Committee established by the Convention of 20 May 1987 on a common transit procedure as regards amendments to that Convention
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 207, in conjunction with Article 218(9) thereof,
Having regard to the proposal from the European Commission,
Whereas:
(1)The Convention on a common transit procedure 12 (‘the Convention’) was concluded between the European Economic Community, the Republic of Austria, the Republic of Finland, the Republic of Iceland, the Kingdom of Norway, the Kingdom of Sweden and the Swiss Confederation on 20 May 1987 and entered into force on 1 January 1988.
(2)Pursuant to Article 15(3)(a) of the Convention, the Joint Committee set up by that Convention may adopt, by decisions, amendments to the Appendices to the Convention.
(3)The Joint Committee, in early 2021, is to adopt a decision on the amendment of the Appendices I and III of the Convention.
(4)It is appropriate to establish the position to be taken on the Union's behalf in the Joint Committee, as the decision on the amendment of the Appendices I and III of the Convention will be binding on the Union.
(5)Article 311 of Commission Implementing Regulation (EU) 2015/2447 13 (‘the Implementing Act’), which lays down the request to transfer the recovery of the customs debt has been amended 14 . According to the new paragraphs (3) and (4) where the customs authority of a country involved in a transit operation obtains evidence that the events giving rise to the debt occurred in its territory, that authority should request the country of departure to transfer to it the responsibility to start the recovery. The country of departure should confirm within a certain period whether it transfers the competency to start the recovery to the requesting customs authority. Therefore, Article 50 of the Appendix I to the Convention, which mirrors the provisions of Article 311 of the Implementing Act, should be amended accordingly.
(6)Annex 72-04 of the Implementing Act, which describes the business continuity procedure for Union transit has been amended 15 . In order to allow for more flexibility in the business continuity procedure in transit and to reduce the formalities and costs incurred by the customs authorities, the validity of the paper comprehensive guarantee certificates and guarantee waiver certificates were prolonged. Therefore, Article 79 of Appendix I to the Convention and Point 19.3., Chapter III, Annex II of Appendix I to the Convention, which mirrors point 19.3, Chapter III, Part I, Annex 72-04 of the Implementing Act, should be amended accordingly.
(7)When the UCC ceases to apply to and in the United Kingdom, with the exception of Northern Ireland, the United Kingdom will accede to the Convention as a separate Contracting Party 16 and the Protocol on Ireland/Northern Ireland to the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community 17 will apply. The Convention contains references to the names of EU Members States, common transit countries and the respective country codes. It is therefore necessary to make appropriate changes to the Appendix III of the Convention to indicate that the United Kingdom is a common transit country and that the UCC, in particular as regards the guarantee provisions, applies in Northern Ireland,
HAS ADOPTED THIS DECISION:
Article 1
The position to be taken on the Union's behalf either in the 33rd meeting or in a subsequent meeting of the Joint Committee or by means of a written procedure as regards the amendments to the Appendices to that Convention shall be based on the draft decision of the Joint Committee attached to this Decision.
Minor changes to the draft decision of the Joint Committee may be agreed to by the representatives of the Union in the Joint Committee, without further Decision of the Council.
Article 2
This Decision is addressed to the Commission.
Done at Brussels,
For the Council
The President
EUROPEAN COMMISSION
Brussels, 13.1.2021
COM(2021) 6 final
ANNEX
to the
Proposal for a Council Decision
on the position to be taken on behalf of the European Union in the EU-CTC Joint Committee established by the Convention of 20 May 1987 on a common transit procedure as regards amendments to that Convention
DRAFT
DECISION No /2021of the EU-CTC Joint Committee established by the Convention of 20 May 1987 on a common transit procedure
of …..2021
amending the Appendices I and III of that Convention
THE EU-CTC JOINT COMMITTEE
Having regard to the Convention of 20 May 1987 on a common transit procedure, and in particular Article 15(3)(a) thereof,
Whereas:
(1)Pursuant to letter (a) of Article 15(3) of the Convention of 20 May 1987 on a common transit procedure 1 (“the Convention”), the Joint Committee established by that Convention is to adopt, by decision, amendments to the Appendices to the Convention.
(2)Article 311 of Commission Implementing Regulation (EU) 2015/2447 2 , which lays down the request to transfer the recovery of the customs debt has been amended 3 . According to the new paragraphs (3) and (4) where the customs authority of a country involved in a transit operation obtains evidence that the events giving rise to the debt occurred in its territory, that authority should request the country of departure to transfer to it the responsibility to start the recovery. The country of departure should confirm within a certain period whether it transfers the competency to start the recovery to the requesting customs authority. Therefore, Article 50 of the Appendix I to the Convention, which mirrors the provisions of Article 311 of Commission Implementing Regulation (EU) 2015/2447, should be amended accordingly.
(3)Annex 72-04 of Commission Implementing Regulation (EU) 2015/2447, which describes the business continuity procedure for Union transit has been amended 4 and applies as of 30 June 2020. According to the amended point 19.3, Chapter III, the validity of the paper comprehensive guarantee certificates and guarantee waiver certificates provided for in Annex 72-04 to Implementing Regulation (EU) 2015/2447 has been prolonged in order to allow for more flexibility in the business continuity procedure in transit and to reduce the formalities and costs incurred by the customs authorities. Therefore, Article 79 of Appendix I to the Convention and Point 19.3., Chapter III, Annex II of Appendix I to the Convention, which mirrors point 19.3, Chapter III, Part I, Annex 72-04 of the abovementioned Implementing Regulation, should be amended accordingly. This amendment should also apply as of 30 June 2020 to grant equal conditions to the guarantors under the Union customs legislation and the Convention.
(4)The forms for guarantor's undertakings are set out in Annexes C1, C2, C4, C5 and C6 of Appendix III of the Convention. Those forms list the Member States of the Union and the other Contracting Parties to the Convention. Decision No 2/2018 5 of the EU-CTC Joint Committee deletes the references to the United Kingdom as a Member State of the Union and inserts the reference to the United Kingdom as a common transit country from the date on which the accession of the United Kingdom as a separate Contracting Party becomes effective. However, in addition, as a consequence of the application of the Protocol on Ireland/Northern Ireland 6 , for Union transit operations Northern Ireland should be listed in a way that indicates that any guarantee that is valid in the EU Member States must also be valid in Northern Ireland.
(5)As a consequence of the application of the Protocol on Ireland/Northern Ireland and in accordance with Article 5(2) of Regulation (EC) No 471/2009 7 , a new code ‘XI’ was introduced 8 to distinguish United Kingdom in respect of Northern Ireland. The use of the country codes defined in Annex A2 and Annex B1 of Appendix III of the Convention should be amended accordingly.
(6)In order to ensure the correct application of the new code ‘XI’, all indications in the Convention relating to the use of country codes should refer to Annex A2 or Annex B1 of Appendix III of the Convention.
(7)Decision No 2/2018 of the EU-CTC Joint Committee enters into force on 1 January 2021 after Decision No 1/2019 9 of the EU-CTC Joint Committee entered into force on 4 December 2019. Decision No 1/2019 introduced the new name of ‘the Republic of North Macedonia’ on the forms for guarantor's undertakings set out in Annexes C1, C2, C4, C5 and C6 of Appendix III of the Convention, while the decision No 2/2018 reintroduced by error the old name ‘the former Yugoslav Republic of Macedonia’ in Annexes C1, C2 and C4. Therefore, the new name of ‘the Republic of North Macedonia’ should be reinstated on those forms.
The Convention should therefore be amended accordingly,
HAS ADOPTED THIS DECISION
Article 1
(1)Appendix I to the Convention is amended as set out in Annex A to this Decision.
(2)Appendix III to the Convention is amended as set out in Annex B to this Decision.
Article 2
This Decision shall enter into force on the day of its adoption.
The points 2 and 3 of Annex A shall apply from 30 June 2020.
The points 1 to 4 of Annex B shall apply from the day the United Kingdom accedes to the Convention as a Contracting Party.
Done at ……..
For the Joint Committee
The President
Annex A
Appendix I to the Convention is amended as follows:
(1)In Article 50, the following paragraphs 3 and 4 are added:
‘3. Where the customs authority of a country involved in a common transit operation obtains evidence, before the time-limit referred to in Article 114(2)(a) expires, that the place where the events from which the debt arises occurred is in its territory, that authority shall immediately and in any event within that time-limit send a duly justified request to the customs authority of the country of departure to transfer the responsibility to start the recovery to the requesting customs authority.
4. The customs authority of the country of departure shall acknowledge the receipt of the request made in accordance with paragraph 3 and shall inform the requesting customs authority, within 28 days from the date on which the request was sent, whether it agrees to satisfy the request and to transfer to the requesting authority the responsibility to start the recovery.’
(2)In article 79:
(a)paragraph 2 is replaced by the following:
‘2. The period of validity of a comprehensive guarantee certificate or a guarantee waiver certificate shall not exceed five years. However, that period may be extended by the customs office of guarantee for one further period not exceeding five years.’
(b)after paragraph (2) paragraphs (3) and (4) are added:
‘3. Where during the period of validity of the certificate the customs office of guarantee is informed that the certificate, as a result of numerous changes, is not sufficiently legible and may be rejected by the customs office of departure, the customs office of guarantee shall invalidate the certificate and issue a new one, if appropriate.
4. Certificates with a period of validity of two years shall remain valid. Their period of validity may be extended by the customs office of guarantee for a second period not exceeding five years.’
(3)In Annex II, Chapter III, Point 19.3. is replaced by the following:
‘19.3 The period of validity of a comprehensive guarantee certificate or a guarantee waiver certificate shall not exceed five years. However, that period may be extended by the customs office of guarantee for one further period not exceeding five years.
Where during the period of validity of the certificate the customs office of guarantee is informed that the certificate, as a result of numerous changes, is not sufficiently legible and may be rejected by the customs office of departure, the customs office of guarantee shall invalidate the certificate and issue a new one, if appropriate.
Certificates with a period of validity of two years shall remain valid. Their period of validity may be extended by the customs office of guarantee for a second period not exceeding five years.’
Annex B
Appendix III to the Convention is amended as follows:
(1)In Annex A1, Title II, Chapter II, point B on the Particulars on the data of the transit declaration, bullet point ‘GUARANTEE REFERENCE’, the text ‘(ISO alpha-2 country code)’ in the Content of Field 2 is replaced with:
‘(country code presented in Annex A2)’.
(1)In Annex A2, point 1, the following sentence is added :
‘XI is used for Northern Ireland.’.
(2)In Annex A4, point 1, the text ‘(ISO alpha-2 country code)’ in the Content of Field 2 is replaced with:
‘(country code presented in Annex A2)’.
(3)In Annex B1, Box 51 is amended as follows:
(a)the text ‘GB United Kingdom’ is replaced with:
‘GB United Kingdom (excluding Northern Ireland)’;
(b)the following item is added in the list:
‘XI Northern Ireland’.
(4)Annex C1, point 1 is amended as follows:
(a)the text ‘the former Yugoslav Republic of Macedonia’ is replaced by the text ‘the Republic of North Macedonia’;
(b)an endnote 3a is added to the text ‘the United Kingdom of Great Britain and Northern Ireland3’ before endnote 3 including the following text:
‘Pursuant to the Protocol on Ireland/Northern Ireland of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, Northern Ireland is to be considered as part of the European Union for the purposes of this guarantee. Therefore, a guarantor established in the customs territory of the European Union shall indicate an address for service or appoint an agent in Northern Ireland if the guarantee may be used therein. However, if a guarantee, in the context of common transit, is made valid in the European Union and in the United Kingdom, a single address for service or an appointed agent in the United Kingdom may cover all parts of the United Kingdom, including the Northern Ireland.’.
(5)Annex C2, point 1 is amended as follows:
(a)the text ‘the former Yugoslav Republic of Macedonia’ is replaced by the text ‘the Republic of North Macedonia’;
(b)an endnote 2a is added to the text ‘the United Kingdom of Great Britain and Northern Ireland’ including the following text:
‘Pursuant to the Protocol on Ireland/Northern Ireland of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, Northern Ireland is to be considered as part of the European Union for the purposes of this guarantee. Therefore, a guarantor established in the customs territory of the European Union shall indicate an address for service or appoint an agent in Northern Ireland if the guarantee may be used therein. However, if a guarantee, in the context of common transit, is made valid in the European Union and in the United Kingdom, a single address for service or an appointed agent in the United Kingdom may cover all parts of the United Kingdom, including the Northern Ireland.’.
(6)Annex C4, point 1 is amended as follows:
(a)the text ‘the former Yugoslav Republic of Macedonia’ is replaced by the text ‘the Republic of North Macedonia’;
(b)an endnote 3a is added to the text ‘the United Kingdom of Great Britain and Northern Ireland3’ before endnote 3 including the following text:
‘Pursuant to the Protocol on Ireland/Northern Ireland of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, Northern Ireland is to be considered as part of the European Union for the purposes of this guarantee. Therefore, a guarantor established in the customs territory of the European Union shall indicate an address for service or appoint an agent in Northern Ireland if the guarantee may be used therein. However, if a guarantee, in the context of common transit, is made valid in the European Union and in the United Kingdom, a single address for service or an appointed agent in the United Kingdom may cover all parts of the United Kingdom, including the Northern Ireland.’.
(7)In Annex C5, row 7 is amended as follows:
(1)a footnote (**) is added to the text ‘United Kingdom’ including the following text:
(2)‘(**) Pursuant to the Protocol on Ireland/Northern Ireland of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, Northern Ireland should be considered as part of the European Union for the purposes of this guarantee.’.
(8)In Annex C6, row 6 is amended as follows:
(1)a footnote (**) is added to the text ‘United Kingdom’ including the following text:
(2)‘(**) Pursuant to the Protocol on Ireland/Northern Ireland of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, Northern Ireland should be considered as part of the European Union for the purposes of this guarantee. ’.
