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Document 52023PC0548
Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Working Party on Customs Questions affecting Transport as regards the proposal to amend the Terms of Reference of the Working Party
Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Working Party on Customs Questions affecting Transport as regards the proposal to amend the Terms of Reference of the Working Party
Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Working Party on Customs Questions affecting Transport as regards the proposal to amend the Terms of Reference of the Working Party
COM/2023/548 final
EUROPEAN COMMISSION
Brussels, 28.9.2023
COM(2023) 548 final
2023/0333(NLE)
Proposal for a
COUNCIL DECISION
on the position to be taken on behalf of the European Union in the Working Party on Customs Questions affecting Transport as regards the proposal to amend the Terms of Reference of the Working Party
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 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.Context of the proposal
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(4) TFUE.
4.3.Conclusion
The legal basis of the proposed decision should be the first subparagraph of Article 207(4) TFUE, in conjunction with Article 218(9) TFEU.
2023/0333 (NLE)
Proposal for a
COUNCIL DECISION
on the position to be taken on behalf of the European Union in the Working Party on Customs Questions affecting Transport as regards the proposal to amend the Terms of Reference of the Working Party
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 207 paragraph 4, in conjunction with Article 218(9) thereof,
Having regard to the proposal from the European Commission,
Whereas:
(1)The terms of reference of the Working Party on Customs Questions affecting transport (‘the WP.30 ToR’) entered into force in October 2017.
(2)Pursuant to its rules of procedures, the Working Party may adopt, by consensus or by vote, a decision on its Terms of Reference or Conventions under its auspices.
(3)The Working Party, during its 164th session on October 2023 or a subsequent session, is to adopt amendments on its Terms of Reference.
(4)It is appropriate to establish the position to be taken on the Union's behalf in the Working Party, as the new Terms of Reference of the Working Party will be capable of decisively influencing the content of Union law on customs, transport and border-crossing facilitations.
(5)It is necessary to transform the title of the Working Party to acknowledge its role at global level as well as making it possible that non-United Nation member may attend to meeting in the future.
(6)It is useful to clarify the tasks, the role and the relationship of the Working Party with inter-governmental and non-governmental organisations.
(7)The position to be taken on behalf of the Union in the Working Party should therefore be based on the draft amendments attached to this Decision. This is without prejudice to the possibility for non-substantial minor changes to the draft amendments, to be agreed by the representatives of the Union in the Working Party without further decision of the Council.
HAS ADOPTED THIS DECISION:
Article 1
The position to be taken on the Union's behalf in the 164th session or in one of the subsequent sessions of the Working Party on Customs Questions affecting Transport on its new Terms of Reference shall be based on the draft amendments attached to this Decision.
Article 2
The position referred to in Article 1 shall be expressed by the Commission. The Member States of the Union shall express the Union position when formal vote is taken in the Working Party on Customs Questions affecting Transport, acting jointly in the interest of the Union.
Article 3
Minor technical changes to the position referred to in Article 1 may be agreed upon by the representatives of the Union without a further decision of the Council.
Article 4
This Decision is addressed to the Member States and to the Commission.
Done at Brussels,
For the Council
The President
EUROPEAN COMMISSION
Brussels, 28.9.2023
COM(2023) 548 final
ANNEX
to the
Proposal for a Council Decision
on the position to be taken on behalf of the European Union in the Working Party on Customs Questions affecting Transport as regards the proposal to amend the Terms of Reference of the Working Party
ANNEX
Suggestions for alignment of the WP.30 ToR with the text of the ToR of ITC
1. The Working Party on Customs Questions affecting Transport Global Forum on Customs questions affecting transport including border crossing facilitation (hereinafter referred to as WP.30), will acting within the framework of the policies of the United Nations and the Economic Commission for Europe (hereinafter ECE) and subject to the general supervision of the Inland Transport Committee (hereinafter ITC) and in conformity with the new Terms of Reference of of ECE (E/ECE/778/Rev.5) and ITC (E/RES/2022/2 and ECE/TRANS/316/Add.2) and consistent with the legal instruments listed in Appendix:
(a) Initiate and pursue actions aimed at promoting the harmonization, improvement and simplification of technical and operational regulations, standards, rules and documentation for customs and border crossing procedures for the various modes of inland transport and multimodal connections, with particular focus, where possible, on contributing to the advancement of the United Nations 2030 Sustainable Development Agenda (General Assembly Resolution A/RES/70/1.) and related Sustainable Development Goals; (ToR ITC (d))
(b) Analyse difficulties encountered at border crossings with a view to devising administrative procedures, operational processes, customs infrastructure design and physical and electronic documentation, to facilitate eliminating such difficulties; (ToR ITC (e))
(c) Administer and monitor the implementation of the conventions, and agreements and other international legally binding instruments on customs and border crossing facilitation under the auspices of the WP.30 (Appendix); (ToR ITC (h))
(d) Review the above legal instruments to ensure their relevance as well as their coherence with other international or subregional treaties concerned with customs and border crossing facilitation issues and to keep them in line with modern transport and border control requirements and, where appropriate, elaborate new international legally binding instruments in the field of border crossing facilitation, taking also account of the need to combat customs fraud effectively; (ToR ITC (h))
(e) Consider and endorse adopt amendment proposals to the legal instruments listed in Appendix and, where appropriate, submit them to the relevant Administrative Committees (see point (n) below) for consideration and formal adoption;
(f) Consider and adopt recommendations, resolutions, comments and examples of best good practices with regard to the implementation of these legal instruments and, where appropriate, submit them to the relevant Administrative Committees (see point (o) below) or ITC for consideration and formal approval or ITC for endorsement;
(g) Study customs and control questions with a view to streamlining customs and other administrative procedures and documentation in the field of the facilitation of border crossing and transport, in particular by promoting electronic data interchange solutions new technologies and innovations, including a platform for digitalization; (ToR ITC (i))
(h) Study specific legal and other measures to combat customs and fiscal fraud resulting from simplified customs and other border crossing procedures and foster the exchange of intelligence among the competent authorities of contracting parties to the relevant legal instruments on border crossing facilitation on abuses with a view to identifying measures to combat such occurrences;
(i) Promote the possible extension of the agreements and conventions from Appendix to other regions and encourages the accession of new countries to them by organizing seminars and workshops as well as advocacy campaigns those;
(j) Encourage wider public and private participation in its activities by fostering cooperation and collaboration with countries, the European Commission, World Customs Organization, other international governmental and non-governmental organizations concerned with transport and border crossing facilitation and the other United Nations regional commissions and other organizations or bodies of the United Nations system with a view, among other things, to discussing and resolving problems relating to the interpretation or enforcement of the provisions of the relevant legal instruments;
(k) Create a working environment that facilitates fulfilment by the contracting parties of the obligations set forth in the legal instruments listed in Appendix, and an exchange of views on the interpretation of these instruments or the resolution of problems connected with their enforcement;
(l) Ensure openness and transparency during its meetings;
(m) Support training and capacity-building activities aimed at the proper implementation of the above legal instruments; (ToR ITC (k))
(n) Ensure close cooperation with and support for the activities of the Administrative Committees for the TIR Convention (AC.2), for the Harmonization Convention (AC.3), for the Convention on Customs Treatment of Pool Containers Used in International Transport (AC.4) and for the TIR Executive Board (TIRExB);
(o) Collaborate closely with other subsidiary bodies of ITC to address horizontal issues relevant to the facilitation of customs issues and other border crossing matters of international transport, with other relevant UNECE working parties and other inter-governmental and non-governmental organizations in particular with the World Customs Organization (WCO). (ToR ITC (m)
(p) Draw up and implement a programme of work relating to its activities and reports on its accomplishment to ITC.
2. These Terms of Reference do not modify the provisions of the relevant legal instruments.
Appendix
Legal instruments under the auspices of the Working Party on Customs Questions affecting Transport (WP.30)
1. Convention concerning Customs Facilities for Touring, signed in New York on 4 June 1954
2. Additional Protocol to the Convention concerning Customs Facilities for Touring, relating to the importation of tourist publicity documents and material, signed in New York on 4 June 1954
3. Customs Convention on the Temporary Importation of Private Road Vehicles, signed in New York on 4 June 1954
4. Customs Convention on the International Transport of Goods under Cover of TIR Carnets (TIR Convention), of 15 January 1959
5. Customs Convention on the International Transport of Goods under Cover of TIR Carnets (TIR Convention), of 14 November 1975
6. Customs Convention on the Temporary Importation for Private Use of Aircraft and Pleasure Boats, of 18 May 1956
7. Customs Convention on the Temporary Importation of Commercial Road Vehicles, of 18 May 1956
8. International Convention to Facilitate the Crossing of Frontiers for Passengers and Baggage carried by Rail, of 10 January 1952
9. International Convention to Facilitate the Crossing of Frontiers for Goods Carried by Rail, of 10 January 1952
10. Customs Convention concerning Spare Parts Used for Repairing Europ Wagons, of 15 January 1958
11. Customs Convention on Containers, of 18 May 1956
12. Customs Convention on Containers, of 2 December 1972
13. European Convention on Customs Treatment of Pallets Used in International Transport, of 9 December 1960
14. International Convention on the Harmonization of Frontier Controls of Goods, 21 October 1982
15 Convention on Customs Treatment of Pool Containers Used in International Transport, 21 January 1994
16. Convention on International Customs Transit Procedures for the Carriage of Goods by Rail under Cover of SMGS Consignment Notes Geneva, 9 February 2006
17. Convention on the Facilitation of Border Crossing Procedures for Passengers, Luggage and Load-Luggage carried in International Traffic by rail, 22 February 2019
