52022PC0311

EUROPEAN COMMISSION

Brussels, 27.6.2022

COM(2022) 311 final

2022/0197(NLE)

Proposal for a

COUNCIL DECISION

on the position to be taken on behalf of the European Union in the EU-Republic of Moldova Customs Sub-Committee as regards the adoption of the decision concerning the mutual recognition of the Authorised Economic Operators Programme of the Republic of Moldova and the Authorised Economic Operators Programme of the European Union

EXPLANATORY MEMORANDUM

1.Subject matter of the proposal

This proposal concerns a decision establishing the position to be taken on the Union's behalf in the European Union - Republic of Moldova Customs Sub-Committee in connection with the envisaged adoption of a Decision concerning the Mutual Recognition of Authorised Economic Operators between the European Union and Republic of Moldova.

1.1.Context of the proposal

The Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part (hereinafter referred to as the “Agreement 1 ”) aims among other to reduce tariffs that European firms face when exporting to Republic of Moldova and to make customs procedures more efficient. In addition, the agreement facilitates trade further by the gradual approximation of Moldovan legislation, rules and procedures, including standards, to those of the EU party of that agreement 2 . The Agreement entered into force in July 2016.

The Customs Sub-Committee, established in accordance with Article 200(1) of the Agreement shall perform its duties as provided for in Article 200(2) and (3) of the Agreement. The Customs Sub-Committee shall inter alia adopt practical arrangements, measures and decisions to implement Chapter V and Protocols II and III to the Agreement, including on exchange of information and data, mutual recognition of customs controls and trade partnership programmes, and mutually agreed benefits. The Customs Sub-Committee is composed of representatives of the European Commission and of Republic of Moldova, responsible for customs and customs-related matters. A representative of the European Commission or of Republic of Moldova who is responsible for customs related matters shall act as its Chair.

1.2.The envisaged act of the Customs Sub-Committee

The Customs Sub-Committee adopts practical arrangements, measures, decisions and recommendations as provided for in Article 200 of the Agreement. These shall be adopted by consensus between the Parties after the completion of Article 11 (3) of the rules of procedures of the EU Republic of Moldova Customs Sub-Committee for their adoption 3 . The decisions shall be binding upon the Parties, which shall take appropriate measures to implement them.

The Customs Sub-Committee may adopt the decision by written procedure if the Parties so agree. The written procedure shall consist of an exchange of notes between the two Chairs, acting in agreement with the Parties. Once the text is agreed, the decision shall be signed independently and successively by a representative of each Party.

Both the EU and Republic of Moldova have in place Authorised Economic Operators (AEO) programmes providing facilitations to economic operators who have invested in their supply chain security and have been authorised by the customs administrations of the relevant country.

The purpose of the envisaged act is to provide for the mutual recognition of AEO programmes between the European Union and the Republic of Moldova.

The decision shall be binding upon the Parties at the date of its adoption. Position to be taken on the Union's behalf.

The present proposal recognises that the European Union and Republic of Moldova (the “Parties”) are committed to strengthening their customs cooperation in accordance with the Agreement. It affirms the commitment of the Parties to facilitate trade and increase supply-chain security through trade partnership programmes.

The security and safety, and the facilitation of the international trade supply chain, can be significantly enhanced through mutual recognition of the respective trade partnership programmes, namely the Authorised Economic Operator Program adopted by Republic of Moldova and the Authorised Economic Operator programme (“AEO”) of the EU. This is why it is proposed that the Union recognise the AEO programme of Republic of Moldova, while Republic of Moldova would recognise the AEO programme of the EU.

2.Legal basis

2.1.Procedural legal basis

2.1.1.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’ 4 .

2.1.2.Application to the present case

The Customs Sub-Committee is a body set up by the Agreement.

The act which the Customs Sub-Committee is called upon to adopt constitutes an act having legal effects. The envisaged act will be binding under international law in accordance with Article 200 of the Association Agreement.

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.

2.2.Substantive legal basis

2.2.1.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.

2.2.2.Application to the present case

The main objective and content of the envisaged act is to facilitate trade between the parties by mutually recognising the Authorised Economic Operators according to Article 197 (j) and Article 200 (3) (b) of chapter 5 on Customs and Trade Facilitation of Title V of the Agreement, which concerns trade and trade-related matters. Consequently, the envisaged act is within the scope of the common commercial policy referred to in Article 207.

The substantive legal basis of the proposed decision, therefore, is Article 207 TFEU. Conclusion.

The legal basis of the proposed decision should be Article 207, in conjunction with Article 218(9) TFEU.

2022/0197 (NLE)

Proposal for a

COUNCIL DECISION

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article(s) 207, in conjunction with Article 218(9) thereof,

Having regard to the proposal from the European Commission,

Whereas:

(1)The Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part was concluded by Council Decision 2014/493/EU 5 on 30 August 2014 and entered into force on 1 July 2016.

(2)Article 192 of the Association Agreement calls on customs authorities to develop customs cooperation of widest possible scope.

(3)Pursuant to Article 200 of the Association Agreement, the Customs Sub-Committee is established and may take the measures necessary for customs cooperation.

(4)Pursuant to Article 200(3) (b) of the Association Agreement, the Customs Sub-Committee set up by the Association Agreement may adopt a decision on mutual recognition of customs controls and trade partnership programmes, and mutually agreed benefits.

(5)The Customs Sub-Committee, during its eighth meeting in 2022, or by written procedure if the Parties so agree, is to adopt a decision concerning the mutual recognition of the Programme of Authorised Economic Operator of Republic of Moldova and the Authorised Economic Operators Programme of the European Union.

(6)It is appropriate to establish the position to be taken on the Union's behalf in the Customs Sub-Committee, as the decision on mutual recognition of Authorised Economic Operators Programme will be binding on the Union.

(7)In order to allow for the prompt application of the measures provided for in the decision concerning the Mutual Recognition of AEO, this decision should enter into force on the date of its adoption,

HAS ADOPTED THIS DECISION:

Article 1

The position to be taken on the Union's behalf in the eight meeting of the Customs Sub-Committee or by written procedure if the parties agree so, established by the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part, with regard to mutual recognition of the Programmes of Authorised Economic Operators of the Republic of Moldova and the European Union, shall be based on the attached draft decision of the Customs Sub-Committee.

Article 2

This Decision is addressed to the Commission.

Done at Brussels,

For the Council

The President

(1) Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part

(2) 2014/492/EU: Council Decision of 16 June 2014 on the signing, on behalf of the European Union, and provisional application of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part

(3) Decision No 1/2015 of the EU –Republic of Moldova Customs Sub-Committee adopting its Rules of Procedure from 20 May 2015

(4) Judgment of the Court of Justice of 7 October 2014, Germany v Council, C-399/12, ECLI:EU:C:2014:2258, paragraphs 61 to 64.

(5) OJ L [260], [30.8.2014], p. [4-738].

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EUROPEAN COMMISSION

Brussels, 27.6.2022

COM(2022) 311 final

ANNEX

to the

Proposal for a Council Decision

DRAFT

DECISION No […/2022] OF THE EUROPEAN UNION - MOLDOVAN CUSTOMS SUB-COMMITTEE CONCERNING THE MUTUAL RECOGNITION OF THE AUTHORISED ECONOMIC OPERATORS PROGRAMME OF MOLDOVA AND THE AUTHORISED ECONOMIC OPERATORS PROGRAMME OF THE EUROPEAN UNION

THE CUSTOMS SUB COMMITTEE (“CSC”),

Having regard to the Association Agreement between the European Union (the “EU”) and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part (‘the Agreement’), done at Brussels on 27 June 2014, and in particular its Chapter on Customs and trade facilitation aiming at strengthening cooperation in the area of customs to ensure implementation of the objectives of the chapter and further facilitate trade, while ensuring effective control, security and prevention of fraud.

Whereas,

(1)Article 197 (j) of the Agreement provides for the commitment of the Parties to establish, where relevant and appropriate, mutual recognition of trade partnership programmes and customs controls, including equivalent trade facilitation measures.

(2)Security and safety, and the facilitation of the international trade supply chain, can be significantly enhanced through mutual recognition of the respective trade partnership programmes, namely of the national Authorised Economic Operator (AEO) programme in Moldova and the AEO programme in the EU;

(3)The two AEO programmes are based on internationally recognised security standards advocated by the SAFE Framework of Standards to Secure and Facilitate Global Trade adopted by the World Customs Organization in June 2005 (SAFE Framework).

(4)Mutual recognition allows the Parties to provide facilitative benefits to economic operators who have invested in supply chain security and have been authorised under their respective programmes.

(5)Site visits and a joint evaluation of the AEO programmes in the EU and in Moldova have revealed that their qualification standards for security and safety purposes are compatible and lead to equivalent results.

(6)Article 200(1) of the Agreement establishes the Customs Sub-Committee. Pursuant to Article 200(3)(b) of the Agreement, it may adopt decisions on mutual recognition of customs controls and trade partnership programmes, and mutually agreed benefits.

HAS DECIDED AS FOLLOWS:

Article 1

Definitions

For the purposes of this decision,

“Customs Authority” means Customs Authority of the MS of the EU and the customs authority of Moldova, hereinafter referred to collectively as “Customs Authorities” and individually as “Customs Authority”.

“Economic operator” means a person involved in the international movement of goods.

“Personal data” means any information relating to an identified or identifiable individual.

“Programme” means:

(a) in the Union: The European Union Authorised Economic Operator (AEO) status (security and safety) granted according to point (b) of Article 38(2) of Regulation (EU) No 952/2013;

(b) in Moldova: the AEO programme covering the AEO-Security and Safety (authorisation) and the combined AEO-Customs Simplifications/Security and Safety (AEOC/AEOS) (authorisation); economic operators from areas outside the control of the government will only be eligible for an AEO authorisation once all AEO criteria can be assessed and evaluated by central competent authorities 1 .

“Programme Members” means economic operators holding AEO status in the EU and membership status in Moldova as described in the definition of “Programme” when referred to collectively.

Article 2

Mutual Recognition and Implementation of the Decision

1. The AEO programmes of the Union and of the Republic of Moldova are hereby mutually recognised to be compatible and equivalent and the corresponding AEO statuses granted are mutually accepted.

2. The Parties shall implement this Decision through their respective Customs Authorities.

Article 3

Compatibility

The Customs Authorities shall cooperate to maintain the compatibility and equivalence between their Programmes, in particular with respect to the following matters:

(a) the application process for granting the AEO status and membership;

(b) the assessment of applications;

(d) the managing, monitoring, suspension and re-assessment, and revocation of the status and membership.

(e) promoting cooperation between Customs and Environmental Authorities to promote status and membership compliance with international environmental standards

The Parties shall ensure that their trade partnership programmes operate within the relevant standards of the SAFE Framework.

Article 4

Benefits

1. Each Customs Authority shall provide benefits to Programme Members of the other Customs Authority that are comparable to the benefits that it provides to its Programme Members.

2. The benefits referred to in paragraph 1 include:

(a) Fewer security and safety related controls: each Customs Authority takes the status of a Programme Member granted by the other Customs Authority favourably into account in its risk assessment to reduce inspections or controls and in other security and safety-related measures;

(b) Recognition of business partners during the application process: each Customs Authority takes the status of a Programme Member granted by the other Customs Authority into account with a view to treating the Programme Member as a secure and safe partner when assessing the business partners’ requirements for applicants under its own Programme;

(c) Priority treatment at customs clearance: each Customs Authority takes the status of a Programme Member granted by the other Customs Authority into account in ensuring priority treatment, expedited processing, simplified formalities and expedited release of the shipments where the Programme Members are involved.

(d) Business continuity mechanism: both customs authorities endeavour to establish a business continuity mechanism to respond to disruptions in trade flows due to increases in security alert levels, border closures and/or natural disasters, hazardous emergencies or other major incidents by which priority cargos related to Programme Members should be facilitated and expedited to the extent possible by the Customs Authorities.

(e) Giving priority to the inspection of consignments covered by exit or entry summary declarations lodged by a Programme Member, if the Customs Authority decides to proceed with an inspection.

3. Following the review process referred to in Article 7(2), each Customs Authority may provide, in cooperation with other government authorities in its territory, further facilitation benefits, which may include streamlining processes and increasing the predictability of movement at the border, to the extent possible.

4. Each Customs Authority:

(a) may suspend the benefits provided to Programme Members of the other Customs Authority under this Decision;

(b) shall, within a reasonable time, communicate the suspension described under subparagraph (a) and the reasons for the suspension to the other Customs Authority;

(c) may only proceed to a suspension pursuant to subparagraph (a) for reasons equivalent to those for which it would suspend the Programme Members from its Programme.

5. Each Customs Authority shall, when it deems appropriate, report irregularities involving Programme Members of the other Customs Authority’s Programme to that Customs Authority for the purpose of ensuring immediate analysis of the appropriateness of the benefits and status granted by the other Customs Authority.

6. For greater certainty, this Decision does not limit a Party or a Customs Authority from requesting information pursuant to the Mutual Administrative Assistance referred to in Article 198 of the Agreement or other applicable instrument between the Parties, or between the Customs Authorities.

Article 5

Exchange of Information and Communication

1. The Customs Authorities shall enhance their communication in order to implement this Decision effectively by:

(a) providing each other with the details on their Programme Members as per Article 5(3);

(b) providing each other with updates on operability and development of their Programmes in a timely manner;

(d) ensuring effective communication through the competent services of the European Commission and the customs administration of Republic of Moldova to enhance risk management practices with respect to supply chain security.

2. Exchange of information and communication in the framework of this Decision shall occur between the competent services of the European Commission and the customs authority of Republic of Moldova.

3. Upon receiving consent from its Programme Member, each Customs Authority shall send to the other Customs Authority strictly the following details about that Programme Member:

(a) name;

(b) address;

(d) validation or authorisation date when available;

(e) unique identification number (for example: EORI or AEO numbers); and

(f) other details that may be mutually determined between the Customs Authorities, subject, when applicable, to any necessary safeguards.

For greater certainty, details in subparagraph (c) do not include the reasons for suspension, revocation or cancellation.

4. The Customs Authorities shall exchange the information referred to in paragraph 3 in a systematic manner by electronic means.

Article 6

Treatment of information

1. Each Customs Authority shall:

(a) unless otherwise provided in this Decision, use any information, including any personal data, received under this Decision for the sole purpose of its implementation, including monitoring and reporting; and

(b) notwithstanding subparagraph (a), obtain the prior written approval from the Customs Authority that sent the information to use the information for other purposes. Such use is then subject to any restrictions laid down by that authority.

2. Each Customs Authority shall:

(a) treat information received under this Decision as confidential; and

(b) provide at least the same level of protection to information received under this Decision as it provides to information received from Programme Members of its Programme.

3. Notwithstanding paragraph 1(a), a Customs Authority may use the information received under this Decision in any judicial or administrative proceedings instituted for failure to comply with its customs law, including in its records of evidence, reports and testimonies. The Customs Authority that has received the information shall notify the Customs Authority that has sent that information prior to such use.

4. Each Customs Authority shall:

(a) only disclose information received under this Decision for the purpose for which it was received; and

(b) notwithstanding subparagraph (a), when a Customs Authority is required to disclose information in judicial or administrative proceedings or when required by its law, inform the sending Customs Authority in advance and in writing of the disclosure unless prevented to do so by law or due to an ongoing investigation. In that case, it shall inform the sending Customs Authority as soon as possible after the disclosure.

5. Each Customs Authority shall:

(a) ensure that the information it sends is accurate and regularly updated;

(b) adopt or maintain appropriate deletion procedures;

(c) promptly notify the other Customs Authority if it determines that information it has sent to the other Customs Authority is inaccurate, incomplete, unreliable, or if its receipt or further use contravenes this Decision;

(d) take all measures it deems appropriate, including supplementation, deletion, or correction of information referred to in subparagraph (c), to safeguard against erroneous reliance on such information; and

(e) only retain information received under this Decision as long as necessary for the purposes of implementing this Decision, except when otherwise required under its law, or for the purposes of judicial or administrative proceedings.

6. Further to paragraphs 4 and 5, each Customs Authority shall ensure in particular that:

(a) security safeguards are in place (including electronic safeguards) to control, on a need-to-know basis, access to information received from the other Customs Authority under this Decision;

(b) information received from the other Customs Authority under this Decision is protected from unauthorised access, dissemination, alteration, deletion or destruction;

(c) information received from the other Customs Authority under this Decision is not disclosed to any private person or legal person, any State or international body that is non-party to the Agreement, or to any other public authority of the EU or Republic of Moldova, except when required in judicial or administrative proceedings, or when required by its law; and

(d) information received from the other Customs Authority under this Decision is stored at all times in secure electronic or paper storage systems, and that logs or documentation are kept on all access, disclosure and use of information received from the other Customs Authority.

7. Each Customs Authority shall:

(a) ensure the personal data of a Programme Member of the other Customs Authority, as it relates to its access, correction and timing thereof, or temporary suspension of use, is treated in a manner at least equivalent to the personal data of its Programme Member; and

(b) publish information to inform its Programme Members about the applicable process for requests referred to in subparagraph (a) under its law.

8. Each Customs Authority shall provide that Programme Members have access, as it relates to their personal data, to administrative redress or judicial review regardless of their nationality or country of residence.

9. The Customs Authorities shall publish information to inform Programme Members of their options of seeking administrative redress or judicial review.

10. Compliance with the provisions in Article 6 by each Customs Authority is subject to review by their respective relevant authority, which ensures that complaints relating to non-compliance in the treatment of information are received, investigated, responded to, and appropriately redressed. These authorities are:

(a) in the EU: the European Data Protection Supervisor or its successor, and the EU Member States' data protection authorities;

(b) in Republic of Moldova: the National Centre for Personal Data Protection ('NCPDP') or its successor within the customs administration of Moldova.

Article 7

Consultation, monitoring and review

The Customs Authorities shall resolve any issues related to the implementation of this Decision through consultations under the auspices of the EU – Moldova Customs Sub-Committee as set in Article 200 of the Association Agreement.

Both Parties shall cooperate closely regarding the implementation of this Decision and shall monitor this regularly by periodical on-site joint monitoring visits to identify possible strengths and weaknesses in AEO Programmes of both Parties.

The EU - Moldova Customs Sub-Committee as set in Article 200 of the Association Agreement shall review the implementation of this Decision regularly. This review process may include, in particular:

(a) exchanges of views on details exchanged and AEO benefits referred to in Article 4 granted to Programme Members, including any future details or AEO benefits referred to in Article 4;

(b) exchanges of views on security provisions such as protocols to be followed during and after a serious security incident (business resumption) or when conditions merit suspension of mutual recognition;

(d) review of the implementation of Article 6.

Article 8

Final Dispositions

1. This Decision shall enter into force upon the first day of the month following the date on which Republic of Moldova has notified the Union of the completion of the procedures necessary for its entry into force.

2. The Customs Sub-Committee may amend this Decision. The amendment shall enter into force in accordance with the procedure described in paragraph 1.

3. A Customs Authority may suspend cooperation under this Decision at any time by providing the other Customs Authority with a thirty (30) days written notice. Such notice is also provided to the competent services of the European Commission and to the customs administration of Republic of Moldova, respectively. Notwithstanding the suspension of the cooperation under this Decision, the Customs Authorities shall continue to comply with Articles 6(1), 6(2), and 6(4) to 6(6) to ensure the protection of information.

4. A Party may terminate this Decision at any time by notifying the other Party through diplomatic channels. The Decision shall terminate thirty (30) days after the written notification is received by the other Party. Notwithstanding the termination of this Decision, the Customs Authorities shall continue to comply with Articles 6(2), 6(4), and 6(6) to ensure the protection of information.

Done in duplicate at …, on this … day of …, 20.., in the English and Romanian languages, each version being equally authentic.

By the Moldova-EU CUSTOMS SUB COMMITTEE

On behalf of the EU

On behalf of Republic of Moldova

(The Co-Chairs)

(1) Headquarters of the Customs service of the Republic of Moldova

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