Regulation 2007/1528 - Application of the arrangements for products from certain ACP states provided for in agreements establishing, or leading to the establishment of, Economic Partnership Agreements - Main contents

COUNCIL REGULATION (EC) No 1528/2007

of 20 December 2007

applying the arrangements for products originating in certain states which are part of the African, Caribbean and Pacific (ACP) Group of States provided for in agreements establishing, or leading to the establishment of, Economic Partnership Agreements

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 133 thereof,

Having regard to the proposal from the Commission,

Whereas:

HAS ADOPTED THIS REGULATION:

CHAPTER I

SUBJECT MATTER, SCOPE AND MARKET ACCESS

Article 1

Subject matter

This Regulation applies the arrangements for products originating in certain states which are part of the African, Caribbean and Pacific (ACP) Group of States provided for in agreements establishing, or leading to the establishment of, Economic Partnership Agreements.

Article 2

Scope

• 1. 

  This Regulation shall apply to products originating in the regions and states listed in Annex I.

• 2. 

  The Council, acting by qualified majority on a proposal from the Commission, shall amend Annex I to add regions or states from the ACP Group of States which have concluded negotiations on an agreement between the Community and that region or state which at least meets the requirements of Article XXIV GATT 1994.

• 3. 

  Such region or state will remain on the list in Annex I unless the Council, acting by qualified majority upon a proposal from the Commission, amends Annex I to remove a region or state from that Annex, in particular where:

Article 3

Market access

• 1. 

  Subject to Articles 6, 7 and 8, import duties shall be eliminated on all products of Chapters 1 to 97 but not 93 of the Harmonised System originating in a region or state listed in Annex I. Such elimination shall be subject to the transitional safeguard and surveillance mechanisms set out in Articles 9 and 10 and the general safeguards mechanism provided for in Articles 11 to 22.

• 2. 

  For products of Chapter 93 of the Harmonised System originating in regions or states listed in Annex I the most favoured nation duties applied shall continue to apply.

• 3. 

  Notwithstanding Article 3(2) of Regulation (EC) No 980/2005, products originating in least-developed countries listed in Annex I of that Regulation which are included in Annex I to this Regulation shall, in addition to the arrangements provided for in this Regulation, continue to benefit from the preferences provided for pursuant to Regulation (EC) No 980/2005 in respect of products:

• 4. 

  Paragraph 1 of this Article and Articles 6, 7 and 8 shall not apply to products originating in South Africa. Such products shall be subject to the relevant provisions of the TDCA. In accordance with the procedure referred to in Article 24(3), an Annex shall be added to this Regulation setting out the regime applicable to products originating in South Africa once the relevant trade provisions of the TDCA have been superseded by the relevant provisions of an agreement establishing, or leading to the establishment of, an Economic Partnership Agreement.

• 5. 

  Paragraph 1 shall not apply to products of tariff heading 0803 00 19 originating in a region or state listed in Annex I and released for free circulation in the Community's outermost regions until 1 January 2018. Paragraph 1 of this Article and Article 7 shall not apply to products of tariff heading 1701 originating in a region or state listed in Annex I and released for free circulation in the French overseas departments until 1 January 2018. Those periods shall be extended to 1 January 2028 unless otherwise agreed between the Parties to the relevant agreements. The Commission shall publish a notice in the Official Journal of the European Union informing interested parties of the termination of this provision.

CHAPTER II

RULES OF ORIGIN AND ADMINISTRATIVE COOPERATION

Article 4

Rules of Origin

• 1. 

  The rules of origin set out in Annex II shall apply in order to determine whether products originate in the regions or states listed in Annex I.

• 2. 

  The rules of origin set out in Annex II shall be superseded by those annexed to any agreement with the regions or states listed in Annex I when that agreement is either provisionally applied, or enters into force, whichever is the earlier. The Commission shall publish a notice in the Official Journal of the European Union to inform operators. The notice shall specify the date of provisional application or entry into force, which shall be the date from which the rules of origin in the agreement shall apply to products originating in the regions and states listed in Annex I.

• 3. 

  The Commission assisted by the Customs Code Committee established by Council Regulation (EEC) 2913/92 of 12 October 1992 establishing the Community Customs Code (10) shall monitor the implementation and application of the provisions of Annex II. Technical amendments and decisions on the management of Annex II may be adopted in accordance with the procedure referred to in Article 247 and 247a of Regulation (EEC) No 2913/92.

Article 5

Administrative cooperation

• 1. 

  Where the Commission has made a finding, on the basis of objective information, of a failure to provide administrative cooperation and/or of irregularities or fraud, it may temporarily suspend the elimination of duties in Articles 3, 6 and 7 (hereafter referred to as the ‘relevant treatment’) in accordance with this Article.

• 2. 

  For the purpose of this Article a failure to provide administrative cooperation shall mean, inter alia:

For the purpose of this Article a finding of irregularities or fraud may be made, inter alia, where there is a rapid increase, without satisfactory explanation, in imports of goods exceeding the usual level of production and export capacity of the region or state concerned.

• 3. 

  Where the Commission, on the basis of information provided by a Member State or on its own initiative, finds that the conditions laid down in paragraphs 1 and 2 are fulfilled, the relevant treatment may be suspended in accordance with the procedure referred to in Article 24(2), provided the Commission has first:

• 4. 

  The period of suspension under this Article shall be limited to that necessary to protect the Community's financial interests. It shall not exceed six months, which may be renewed. At the end of that period, the Commission shall decide either to terminate the suspension after informing the Committee provided for in Article 24 or to extend the period of suspension in accordance with the procedure referred to in paragraph 3 of this Article.

• 5. 

  The temporary suspension procedures set out in paragraphs 2 to 4 shall be superseded by those set out in any agreement with the regions or states listed in Annex I when that agreement is either provisionally applied or enters into force, whichever is the earlier. The Commission shall publish a notice in the Official Journal of the European Union to inform operators. The notice shall specify the date of provisional application or entry into force, which shall be the date from which the temporary suspension procedures in the agreement shall apply to products covered by this Regulation.

• 6. 

  In order to implement the temporary suspension provided for in any agreement with the regions or states listed in Annex I, the Commission shall, without undue delay:

The decision suspending the relevant treatment shall be adopted in accordance with the procedure referred to in Article 24(2).

CHAPTER III

TRANSITIONAL ARRANGEMENTS

SECTION 1

Rice

Article 6

Zero duty tariff rate quotas and eventual elimination of duties

• 1. 

  Import duties on the products of tariff heading 1006 shall be eliminated as from 1 January 2010, with the exception of import duties on the products of subheading 1006 10 10 which shall be eliminated as from 1 January 2008.

• 2. 

  The following tariff rate quotas at zero duty shall be opened for products of tariff heading 1006 except for subheading 1006 10 10 originating in the regions or states listed in Annex I which form part of the CARIFORUM region:

• 3. 

  The detailed rules for implementing the tariff quotas referred to in paragraph 2 shall be determined in accordance with the procedures referred to in Articles 13 and 26(2) of Council Regulation (EC) No 1785/2003 of 29 September 2003 on the common organisation of the market in rice (11).

SECTION 2

Sugar

Article 7

Zero duty tariff rate quotas and eventual elimination of duties

• 1. 

  Import duties on products of tariff heading 1701 shall be eliminated as from 1 October 2009.

• 2. 

  In addition to the tariff rate quotas opened and administered pursuant to Article 28 of Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the markets in the sugar sector (12), the following tariff rate quotas shall be opened for products of tariff heading 1701 for the period from 1 October 2008 to 30 September 2009:

• 3. 

  Article 30 of Regulation (EC) No 318/2006 shall apply to imports under the tariff rate quotas referred to in the previous paragraph.

• 4. 

  The detailed rules for dividing by region and implementing the tariff quotas referred to in this Article shall be adopted in accordance with the procedure referred to in Article 39(2) of Regulation (EC) No 318/2006.

Article 8

Transitional arrangement

For the period from 1 October 2009 to 30 September 2012, Article 7(1) shall not apply to imports of products of CN code 1701 unless the importer undertakes to purchase such products at a price not lower than 90 % of the reference price (on a c.i.f. basis) set in Article 3 of Regulation (EC) No 318/2006 for the relevant marketing year.

Article 9

Transitional safeguard mechanism for sugar

• 1. 

  For the period from 1 October 2009 to 30 September 2015 the treatment granted in Article 7(1) for imports of products of tariff heading 1701 originating in regions or states listed in Annex I and which are not least-developed countries listed in Annex I to Regulation (EC) No 980/2005 may be suspended when:

• 2. 

  The quantities provided for in point (a) of paragraph 1 may be subdivided by region.

• 3. 

  During the period referred to in paragraph 1, imports of products of tariff heading 1701 originating in regions or states listed in Annex I shall require an import licence.

• 4. 

  The suspension of the treatment granted in Article 7(1) shall be terminated at the end of the marketing year in which it was introduced.

• 5. 

  Detailed rules on the subdivision of quantities provided for in paragraph 1 and for the management of the system referred to in paragraphs 1, 3 and 4 of this Article, and suspension decisions shall be adopted in accordance with the procedure referred to in Article 39(2) of Regulation (EC) No 318/2006.

Article 10

Transitional surveillance mechanism

• 1. 

  For the period from 1 January 2008 to 30 September 2015, imports of products of tariff headings 1704 90 99, 1806 10 30, 1806 10 90, 2106 90 59, 2106 90 98 originating in regions or states listed in Annex I shall be subject to the surveillance mechanism provided for in Article 308d of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation (EEC) No 2913/92 establishing the Community Customs Code (13).

• 2. 

  On the basis of that surveillance, the Commission shall check whether there is a cumulative increase of imports of one or more of those products originating in a particular region by more than 20 % in volume during a period of twelve consecutive months compared to the average of the yearly imports over the previous three twelve-month periods.

• 3. 

  If the level referred to in paragraph 2 is reached, the Commission shall analyse the pattern of trade, the economic justification and the sugar content of such imports. If the Commission concludes that such imports are used to circumvent the tariff rate quotas, the transitional arrangements and the special safeguard mechanism provided for in Articles 7, 8 and 9, it may suspend the application of Article 3(1) to imports of products of tariff headings 1704 90 99, 1806 10 30, 1806 10 90, 2106 90 59, 2106 90 98 originating in regions or states listed in Annex I which are not least-developed countries listed in Annex I to Regulation (EC) No 980/2005 until the end of the marketing year concerned.

• 4. 

  Detailed rules for the management of this system and suspension decisions shall be adopted in accordance with the procedure referred to in Article 16 of Council Regulation (EC) No 3448/93 of 6 December 1993 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products (14).

CHAPTER IV

GENERAL SAFEGUARD PROVISIONS

Article 11

Definitions

For the purposes of this Chapter:

Article 12

Principles

• 1. 

  A safeguard measure may be imposed in accordance with the provisions set out in this Chapter where products originating in regions or states listed in Annex I are being imported in the Community in such increased quantities and under such conditions as to cause or threaten to cause any of the following:

• 2. 

  In cases where products originating in regions or states listed in Annex I are being imported into the Community in such increased quantities and under such conditions as to cause or threaten to cause disturbances in the economic situation of one or several of the Community's outermost regions, a safeguard measure may be imposed in accordance with the provisions set out in this Chapter.

Article 13

Determination of the conditions to impose safeguard measures

• 1. 

  The determination of serious injury or a threat thereof shall cover inter alia the following factors:

• 2. 

  The determination of disturbances or a threat thereof shall be based on objective factors, including the following elements:

• 3. 

  In determining whether imports are made under such conditions as to cause or threaten to cause disturbances in the markets of agricultural products or mechanisms regulating those markets, including regulations creating Common Market Organisations, all relevant objective factors must be taken into consideration, including one or more of the following elements:

• 4. 

  In determining whether the conditions referred to in paragraphs 1, 2 and 3 are met in the case of the Community's outermost regions, the analyses shall be restricted to the territory of the outermost region(s) concerned. Particular attention shall be paid to the size of the local industry, its financial situation and the situation of employment.

Article 14

Initiation of proceedings

• 1. 

  An investigation shall be initiated upon request by a Member State or on the Commission's own initiative if it is apparent to the Commission that there is sufficient evidence to justify such initiation.

• 2. 

  The Member States shall inform the Commission should trends in imports from any of the regions or states listed in Annex I appear to call for safeguard measures. That information shall include the evidence available, as determined on the basis of the criteria laid down in Article 13. The Commission shall pass that information on to all Member States within three working days.

• 3. 

  Consultation with the Member States shall take place within eight working days of the Commission's sending the information to Member States as provided for in paragraph 2. Where, after consultation, it is apparent that there is sufficient evidence to justify the initiation of a proceeding, the Commission shall publish a notice in the Official Journal of the European Union. Initiation shall take place within one month of the receipt of information from a Member State.

• 4. 

  If, after consulting the Member States, the Commission takes the view that the circumstances set out in Article 12 exist, it shall immediately notify the region or states listed in Annex I concerned of its intention to initiate an investigation. The notification may be accompanied by an invitation for consultations with the aim of clarifying the situation and arriving at a mutually satisfactory solution.

Article 15

The investigation

• 1. 

  Following the initiation of the proceeding, the Commission shall commence an investigation.

• 2. 

  The Commission may request Member States to supply information and Member States shall take whatever steps are necessary in order to give effect to any such request. Where that information is of general interest or where its transmission was requested by a Member State, the Commission shall forward it to all Member States provided it is not confidential; if it is confidential the Commission shall forward a non-confidential summary.

• 3. 

  In the event of an investigation restricted to an outermost region, the Commission may request the competent local authorities to supply the information referred to in paragraph 2 via the Member State concerned.

• 4. 

  The investigation shall, whenever possible, be concluded within six months of the initiation of the investigation. In exceptional circumstances, that time limit may be extended by a further period of three months.

Article 16

Imposition of provisional safeguard measures

• 1. 

  Provisional safeguard measures shall be applied in critical circumstances where a delay would cause damage which it would be difficult to repair, pursuant to a preliminary determination that circumstances set out in Article 12 as appropriate exist. The Commission shall take such provisional measures after consultation with Member States or, in cases of extreme urgency, after informing the Member States. In the latter case, consultation shall take place within ten days of notification of the Member States of the action taken by the Commission.

• 2. 

  In view of the particular situation of outermost regions and their vulnerability to any surge in imports, provisional safeguard measures shall be applied in proceedings that concern them where a preliminary determination has shown that imports have increased. In that case, the Commission shall inform Member States upon taking the measures and consultation shall take place within ten days of notification of the Member States of the action taken by the Commission.

• 3. 

  Where a Member State requests immediate intervention by the Commission and where the conditions in paragraph 1 or 2 are met, the Commission shall take a decision within five working days of receiving the request.

• 4. 

  The Commission shall immediately inform the Council and the Member States of any decision taken under paragraphs 1, 2 and 3. The Council, acting by a qualified majority, may decide differently within one month of having been informed by the Commission pursuant to this paragraph.

• 5. 

  Provisional measures may take the form of an increase in the customs duty on the product concerned up to a level which does not exceed the customs duty applied to other WTO members, or tariff quotas.

• 6. 

  Provisional measures shall not apply for more than 180 days. Where provisional measures are restricted to outermost regions, they may not apply for more than 200 days.

• 7. 

  Should the provisional safeguard measures be repealed because the investigation shows that the conditions laid down in Articles 12 and 13 are not met, any duty collected as a result of those provisional measures shall be refunded automatically.

Article 17

Termination of investigation and proceeding without measures

Where bilateral safeguard measures are deemed unnecessary and there is no objection within the Advisory Committee referred to in Article 21, the investigation and proceeding shall be terminated by Commission decision. In all other cases, the Commission shall immediately submit to the Council a report on the results of the consultation, together with a proposal for a Council Regulation terminating the proceeding. The proceeding shall be deemed terminated if, within one month, the Council acting by qualified majority has not decided otherwise.

Article 18

Imposition of definitive measures

• 1. 

  Where the facts as finally established show that the circumstances set out in Article 12, as appropriate, are met, the Commission shall request consultations with the region or state concerned meeting in the context of the appropriate institutional arrangement set up in the relevant agreements permitting a region or state to be included in Annex 1 with a view to seeking a mutually acceptable solution.

• 2. 

  If the consultations referred to in paragraph 1 do not lead to a mutually satisfactory solution within thirty days of the matter's being referred to the region or state concerned, a decision to impose definitive bilateral safeguard measures shall be taken by the Commission, in consultation with Member States, within twenty working days of the end of the consultation period.

• 3. 

  Any decision taken by the Commission pursuant to this Article shall be communicated to the Council and Member States. Any Member State may, within ten working days of such communication, refer the decision to the Council.

• 4. 

  If a Member State refers the Commission's decision to the Council, the Council, acting by a qualified majority, may confirm, amend or revoke the decision. If within one month of the referral of the matter the Council has not taken a decision, the decision taken by the Commission shall be deemed confirmed.

• 5. 

  Definitive measures may take one of the following forms:

• 6. 

  No bilateral safeguard measure shall be applied on the same product from the same region or state less than one year after previous such measures have lapsed or been removed.

Article 19

Duration and review of safeguard measures

• 1. 

  A safeguard measure shall remain in force only for such period of time as may be necessary to prevent or remedy the serious injury or disturbances. That period shall not exceed two years, unless it is extended under paragraph 2. Where the measure is restricted to one or several of the outermost region(s) of the Community, the period of application may not exceed four years.

• 2. 

  The initial period of duration of a safeguard measure may exceptionally be extended provided it is determined that the safeguard measure continues to be necessary to prevent or remedy serious injury or disturbances.

• 3. 

  Extensions shall be adopted in accordance with the procedures of this Regulation applying to investigations and using the same procedures as the initial measures.

The total duration of a safeguard measure may not exceed four years, including any provisional measure. In the case of a measure restricted to outermost regions, that limit shall be extended to eight years.

• 4. 

  If the duration of a safeguard measure exceeds one year, it shall be progressively liberalised at regular intervals during its period of application, including any extension.

Consultations with the region or state concerned shall be held periodically in the relevant institutional bodies of the agreements, with a view to establishing a timetable for their abolition as soon as circumstances permit.

Article 20

Surveillance measures

• 1. 

  Where the trend in imports of a product originating in an ACP State is such that they could cause one of the situations referred to in Article 12, imports of that product may be subject to prior Community surveillance.

• 2. 

  The decision to impose surveillance shall be taken by the Commission.

Any decision taken by the Commission pursuant to this Article shall be communicated to the Council and Member States. Any Member State may, within ten working days of such communication, refer the decision to the Council.

If a Member State refers the Commission's decision to the Council, the Council, acting by a qualified majority, may confirm, amend or revoke the decision. If within one month of the referral of the matter, the Council has not taken a decision, the decision taken by the Commission shall be deemed confirmed.

• 3. 

  Surveillance measures shall have a limited period of validity. Unless otherwise provided, they shall cease to be valid at the end of the second six-month period following the first six months after the measures were introduced.

• 4. 

  Surveillance measures may be restricted to the territory of one or more Community outermost region(s) where necessary.

• 5. 

  The decision to impose surveillance measures shall be communicated immediately to the appropriate institutional body set up in the relevant agreements permitting a region or state to be included in Annex I for information.

Article 21

Consultations

The competent consultative committee for the purposes of this Chapter shall be the Advisory Committee provided for in Article 4 of Council Regulation (EC) No 3285/94 of 22 December 1994 on the common rules for imports (15). In the case of products falling under CN code 1701, the competent committee shall be assisted by the committee established pursuant to Article 39 of Regulation (EC) No 318/2006.

Article 22

Exceptional measures with limited territorial application

Where it emerges that the conditions laid down for the adoption of bilateral safeguard measures are met in one or more Member States, the Commission may, after having examined alternative solutions, exceptionally, and in accordance with Article 134 of the Treaty, authorise the application of surveillance or safeguard measures restricted to the Member State or Member States concerned if it considers that such measures applied at that level are more appropriate than measures applied throughout the Community. Those measures must be strictly limited in time and must disrupt the operation of the internal market as little as possible.

CHAPTER V

PROCEDURAL PROVISIONS

Article 23

Adaptation to technical developments

This Regulation shall be amended in accordance with the procedure referred to in Article 24(3) in order to make any technical amendments required as a result of differences between this regulation and agreements signed with provisional application or concluded in accordance with Article 300 of the Treaty with the regions or states listed in Annex I.

Article 24

Committee

• 1. 

  The Commission shall be assisted by the EPA Implementation Committee.

• 2. 

  Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply.

• 3. 

  Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply.

• 4. 

  The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

CHAPTER VI

FINAL PROVISIONS

Article 25

Amendments

Article 1(2) of Regulation (EC) No 1964/2005 shall be deleted.

Article 26

Repeal

Regulations (EC) No 2285/2002 and (EC) No 2286/2002 shall be repealed.

Article 27

Entry into force

This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.

It shall apply from 1 January 2008.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 20 December 2007.

For the Council

The President

• F. 

  NUNES CORREIA

• (1) 

  OJ L 317, 15.12.2000, p. 3. Agreement as amended by Agreement of 22 December 2005 (OJ L 209, 11.8.2005, p. 27).

• (2) 

  OJ L 311, 4.12.1999, p. 1. Agreement as amended by the Additional Protocol of 25 June 2005 (OJ L 68, 15.3.2005, p. 33).

• (3) 

  OJ L 169, 30.6.2005, p. 1. Regulation as last amended by Commission Regulation (EC) No 606/2007 (OJ L 141, 2.6.2007, p. 4).

• (4) 

  OJ L 82, 22.3.1997, p. 1. Regulation as amended by Regulation (EC) No 807/2003 (OJ L 122, 16.5.2003, p. 36).

• (5) 

  Council Decision 2007/627/EC of 28 September 2007 denouncing on behalf of the Community Protocol 3 on ACP sugar appearing in the ACP-EEC Convention of Lomé and the corresponding declarations annexed to that Convention, contained in Protocol 3 attached to Annex V to the ACP-EC Partnership Agreement, with respect to Barbados, Belize, the Republic of Congo, the Republic of Côte d'Ivoire, the Republic of the Fiji Islands, the Republic of Guyana, Jamaica, the Republic of Kenya, the Republic of Madagascar, the Republic of Malawi, the Republic of Mauritius, the Republic of Mozambique, the Federation of Saint Kitts and Nevis, the Republic of Suriname, the Kingdom of Swaziland, the United Republic of Tanzania, the Republic of Trinidad and Tobago, the Republic of Uganda, the Republic of Zambia and the Republic of Zimbabwe (OJ L 255, 29.9.2007, p. 38).

• (6) 

  OJ L 184, 17.7.1999, p. 23. Decision as last amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 11).

• (7) 

  OJ L 348, 21.12.2002, p. 3.

• (8) 

  OJ L 348, 21.12.2002, p. 5.

• (9) 

  OJ L 316, 2.12.2005, p. 1.

• (10) 

  OJ L 302, 19.10.1992, p. 1. Regulation as last amended by Regulation (EC) No 1791/2006 (OJ L 363, 20.12.2006, p. 1).

• (11) 

  OJ L 270, 21.10.2003, p. 96. Regulation repealed as from 1 September 2008 by Regulation (EC) No 1234/2007 (OJ L 299, 16.11.2007, p. 1).

• (12) 

  OJ L 58, 28.2.2006, p. 1. Regulation as last amended by Regulation (EC) No 1260/2007 (OJ L 283, 27.10.2007, p. 1).

• (13) 

  OJ L 253, 11.10.1993, p. 1. Regulation as last amended by Regulation (EC) No 214/2007 (OJ L 62, 1.3.2007, p. 6).

• (14) 

  OJ L 318, 20.12.1993, p. 18. Regulation as last amended by Regulation (EC) No 2580/2000 (OJ L 298, 25.11.2000, p. 5).

• (15) 

  OJ L 349, 31.12.1994, p. 53. Regulation as last amended by Regulation (EC) No 2200/2004 (OJ L 374, 22.12.2004, p. 1).

ANNEX I

List of regions or states which have concluded negotiations within the meaning of Article 2(2)

ANNEX II

Rules of origin

CONCERNING THE DEFINITION OF THE CONCEPT OF ‘ORIGINATING PRODUCTS’ AND METHODS OF ADMINISTRATIVE COOPERATION

Articles

Articles

Articles

Articles

Articles

Articles

Articles

INDEX

APPENDICES

TITLE I

GENERAL PROVISIONS

Article 1

Definitions

For the purposes of this Annex:

TITLE II

DEFINITION OF THE CONCEPT OF ‘ORIGINATING PRODUCTS’

Article 2

General requirements

• 1. 

  For the purpose of the application of the provisions of this Regulation, the following products shall be considered as originating in the ACP States of Annex I, hereafter, for the purpose of this Annex, referred to as ‘ACP States’:

• 2. 

  For the purpose of the implementation of paragraph 1, the territories of the ACP States shall be considered as being one territory.

Originating products made up of materials wholly obtained or sufficiently worked or processed in two or more ACP States shall be considered as products originating in the ACP State where the last working or processing took place, provided the working or processing carried out there goes beyond that referred to in Article 5 of this Annex.

• 3. 

  For products listed in Appendix 10 and in Appendix 11, paragraph 2 shall apply only after 1 October 2015 and only after 1 January 2010, respectively.

Article 3

Wholly obtained products

• 1. 

  The following shall be considered as wholly obtained in the ACP States or in the Community:

• 2. 

  The terms ‘their vessels’ and ‘their factory ships’ in points (f) and (g) of paragraph 1 shall apply only to vessels and factory ships:

• 3. 

  Notwithstanding paragraph 2, the Community shall, upon request by an ACP State, recognise vessels chartered or leased by the ACP State to undertake fisheries activities in its exclusive economic zone as ‘their vessels’ under the following conditions:

Article 4

Sufficiently worked or processed products

• 1. 

  For the purposes of this Annex, products which are not wholly obtained shall be considered to be sufficiently worked or processed in the ACP States or in the Community, when the conditions set out in the list in Appendix 2 or, alternatively, in Appendix 2A are fulfilled. The conditions referred to above indicate, for all products covered by this Regulation, the working or processing which must be carried out on non-originating materials used in manufacturing and apply only in relation to such materials. Accordingly, it follows that if a product, which has acquired originating status by fulfilling the conditions set out in the list is used in the manufacture of another product, the conditions applicable to the product in which it is incorporated do not apply to it, and no account shall be taken of the non-originating materials which may have been used in its manufacture.

• 2. 

  Notwithstanding paragraph 1, non-originating materials which, according to the conditions set out in the list, should not be used in the manufacture of a given product may nevertheless be used, provided that:

This paragraph shall not apply to products falling within chapters 50 to 63 of the Harmonised System.

• 4. 

  Paragraphs 1 to 3 shall apply except as provided in Article 5.

Article 5

Insufficient working or processing operations

• 1. 

  Without prejudice to paragraph 2, the following operations shall be considered as insufficient working or processing to confer the status of originating products, whether or not the requirements of Article 4 are satisfied:

• 2. 

  All the operations carried out in either the ACP States or the Community on a given product shall be considered together when determining whether the working or processing undergone by that product is to be regarded as insufficient within the meaning of paragraph 1.

Article 6

Cumulation of origin

• 1. 

  Materials originating in the Community or in the OCT shall be considered as materials originating in the ACP States when incorporated into a product obtained there. It shall not be necessary for such materials to have undergone sufficient working or processing, provided they have undergone working or processing beyond that referred to in Article 5.

• 2. 

  Working and processing carried out in the Community or in the OCT shall be considered as having been carried out in the ACP States when the materials undergo subsequent working or processing in the ACP States beyond that referred to in Article 5.

• 3. 

  For the purpose of determining whether the products originate in the OCT, the provisions of this Annex shall apply mutatis mutandis.

• 4. 

  For products listed in Appendix 10 and in Appendix 11, the provisions of this Article shall apply only after 1 October 2015 and only after 1 January 2010 respectively.

• 5. 

  Subject to the provisions of paragraphs 6, 7, 8 and 11, materials originating in South Africa shall be considered as originating in the ACP States when incorporated into a product obtained there provided they have undergone working or processing beyond that referred to in Article 5. It shall not be necessary for such materials to have undergone sufficient working or processing.

• 6. 

  Products which have acquired originating status by virtue of paragraph 5 shall continue to be considered as products originating in the ACP States only when the value added there exceeds the value of the materials used that originate in South Africa. If that is not so, the products concerned shall be considered as originating in South Africa. In the allocation of origin, no account shall be taken of materials originating in South Africa which have undergone sufficient working or processing in the ACP States.

• 7. 

  The cumulation provided for in paragraph 5 shall not apply to the products listed in Appendices 7, 10 and 11.

• 8. 

  The cumulation provided for in paragraph 5 shall apply to the products listed in Appendix 8 only when the tariffs on those products in the framework of the Agreement on Trade, Development and Co-operation between the European Community and the Republic of South Africa have been eliminated. The Commission shall publish the date on which the conditions of this paragraph have been fulfilled in the Official Journal of the European Union (C series).

• 9. 

  Without prejudice to paragraphs 7 and 8, working and processing carried out in South Africa shall be considered as having been carried out in another Member State of the South African Customs Union (SACU), being an ACP State, when the materials undergo subsequent working or processing in that other Member State of the SACU.

• 10. 

  Without prejudice to paragraphs 7 and 8 and at the request of the ACP States, working and processing carried out in South Africa shall be considered as having been carried out in the ACP States when the materials undergo subsequent working or processing in an ACP State within the context of a regional economic integration agreement.

• 11. 

  The requests of the ACP States shall be decided on in accordance with the procedure referred to in Article 247 and 247a of Regulation (EEC) 2913/92.

• 12. 

  The cumulation provided for in paragraph 5 may be applied only where the South African materials used have acquired the status of originating products through the application of rules of origin identical to those set out in this Annex. The cumulation provided for in paragraph 9 and 10 may be applied only through the application of rules of origin identical to those set out in this Annex.

• 13. 

  At the request of the ACP States, materials originating in a neighbouring developing country, other than an ACP State, belonging to a coherent geographical entity, shall be considered as materials originating in the ACP States when incorporated into a product obtained there. It shall not be necessary for such materials to have undergone sufficient working or processing, provided that:

This paragraph shall not apply to tuna products classified under Harmonised System Chapters 3 or 16 and to rice products of HS Code 1006.

For the purpose of determining whether products originate in a neighbouring developing country, the provisions of this Annex shall apply.

The requests of the ACP States shall be decided on in accordance with the procedure referred to in Article 247 and 247a of Regulation (EEC) 2913/92. Such decisions shall also identify the products for which cumulation provided for under this paragraph may not be permitted.

Article 7

Unit of qualification

• 1. 

  The unit of qualification for the application of this Annex shall be the particular product which is considered as the basic unit when determining classification using the nomenclature of the Harmonised System.

Accordingly:

• 2. 

  Where, under General Rule 5 of the Harmonised System, packaging is included with the product for classification purposes, it shall be included for the purposes of determining origin.

Article 8

Accessories, spare parts and tools

Accessories, spare parts and tools dispatched with a piece of equipment, machine, apparatus or vehicle, which are part of the normal equipment and included in the price thereof or which are not separately invoiced shall be regarded as one with the piece of equipment, machine, apparatus or vehicle in question.

Article 9

Sets

Sets, as defined in General Rule 3 of the Harmonised System, shall be regarded as originating when all the component products are originating. Nevertheless, when a set is composed of originating and non-originating products, the set as a whole shall be regarded as originating, provided that the value of the non-originating products does not exceed 15 per cent of the ex-works price of the set.

Article 10

Neutral elements

In order to determine whether a product originates, it shall not be necessary to determine the origin of the following which might be used in its manufacture:

TITLE III

TERRITORIAL REQUIREMENTS

Article 11

Principle of territoriality

• 1. 

  The conditions set out in Title II of this Annex relating to the acquisition of originating status must be fulfilled without interruption in the ACP States, save as provided in Article 6.

• 2. 

  If originating goods exported from the ACP States, the Community or the OCT to another country are returned, except insofar as provided in Article 6, they shall be considered as non-originating, unless it can be demonstrated to the satisfaction of the customs authorities that:

Article 12

Direct transport

• 1. 

  The preferential treatment provided for in this Regulation shall apply only to products that satisfy the requirements of this Annex and are transported directly between the territory of the ACP States, of the Community, of the OCT or of South Africa for the purposes of Article 6 without entering any other territory. However, products constituting one single consignment may be transported through other territories with, should the occasion arise, transhipment or temporary warehousing in such territories, provided that they remain under the surveillance of the customs authorities in the country of transit or warehousing and do not undergo operations other than unloading, reloading or any operation designed to preserve them in good condition.

Originating products may be transported by pipeline across territory other than that of an ACP State or of the Community.

• 2. 

  Evidence that the conditions set out in paragraph 1 have been fulfilled shall be supplied to the customs authorities of the importing country by the production of:

Article 13

Exhibitions

• 1. 

  Originating products sent from an ACP State for exhibition in a country other than those referred to in Article 6 and sold after the exhibition for importation into the Community shall benefit on importation from the provisions of this Regulation provided it is shown to the satisfaction of the customs authorities that:

• 2. 

  A proof of origin shall be issued or made out in accordance with the provisions of Title IV and submitted to the customs authorities of the importing country in the normal manner. The name and address of the exhibition shall be indicated thereon. Where necessary, additional documentary evidence of the conditions under which they have been exhibited may be required.

• 3. 

  Paragraph 1 shall apply to any trade, industrial, agricultural or crafts exhibition, fair or similar public show or display which is not organised for private purposes in shops or business premises with a view to the sale of foreign products and during which the products remain under customs control.

TITLE IV

PROOF OF ORIGIN

Article 14

General requirements

• 1. 

  Products originating in the ACP States shall, on importation into the Community, benefit from the provisions of this Regulation upon submission of either:

• 2. 

  Notwithstanding paragraph 1, originating products within the meaning of this Annex shall, in the cases specified in Article 25, benefit from the provisions of this Regulation without its being necessary to submit any of the documents referred to above.

Article 15

Procedure for the issue of a movement certificate EUR.1

• 1. 

  A movement certificate EUR.1 shall be issued by the customs authorities of the exporting country on application having been made in writing by the exporter or, under the exporter's responsibility, by his authorised representative.

• 2. 

  For that purpose, the exporter or his authorised representative shall fill out both the movement certificate EUR.1 and the application form, specimens of which are given in Appendix 3. Those forms shall be completed in accordance with the provisions of this Annex. If they are handwritten, they shall be completed in ink in printed characters. The description of the products shall be given in the box reserved for that purpose without leaving any blank lines. Where the box is not completely filled, a horizontal line shall be drawn below the last line of the description, the empty space being crossed through.

• 3. 

  The exporter applying for the issue of a movement certificate EUR.1 shall at any time, at the request of the customs authorities of the exporting ACP State where the movement certificate EUR.1 is issued, produce all appropriate documents proving the originating status of the products concerned as well as fulfilment of the other requirements of this Annex.

• 4. 

  A movement certificate EUR.1 shall be issued by the customs authorities of the exporting ACP State if the products concerned can be considered as products originating in the ACP States or in one of the other countries referred to in Article 6 and fulfil the other requirements of this Annex.

• 5. 

  The issuing customs authorities shall take any steps necessary to verify the originating status of the products and the fulfilment of the other requirements of this Annex. For that purpose they shall have the right to call for any evidence and to carry out any inspection of the exporter's accounts or any other check considered appropriate. The issuing customs authorities shall also ensure that the forms referred to in paragraph 2 are duly completed. In particular, they shall check whether the space reserved for the description of the products has been completed in such a manner as to exclude all possibility of fraudulent additions.

• 6. 

  The date of issue of the movement certificate EUR.1 shall be indicated in Box 11 of the certificate.

• 7. 

  A movement certificate EUR.1 shall be issued by the customs authorities and made available to the exporter as soon as actual exportation has been effected or ensured.

Article 16

Movement certificates EUR.1 issued retrospectively

• 1. 

  Notwithstanding Article 15(7), a movement certificate EUR.1 may exceptionally be issued after exportation of the products to which it relates if:

• 2. 

  For purposes the implementation of paragraph 1, the exporter shall indicate in his application the place and date of exportation of the products to which the movement certificate EUR.1 relates, and state the reasons for his request.

• 3. 

  The customs authorities may issue a movement certificate EUR.1 retrospectively only after verifying that the information supplied in the exporter's application agrees with that in the corresponding file.

• 4. 

  Movement certificates EUR.1 issued retrospectively shall be endorsed with the following phrase:

‘ISSUED RETROSPECTIVELY’

• 5. 

  The endorsement referred to in paragraph 4 shall be inserted in the ‘Remarks’ box of the movement certificate EUR.1.

Article 17

Issue of a duplicate movement certificate EUR.1

• 1. 

  In the event of the theft, loss or destruction of a movement certificate EUR.1, the exporter may apply to the customs authorities which issued it for a duplicate made out on the basis of the export documents in their possession.

• 2. 

  The duplicate issued in this way shall be endorsed with the following word:

‘DUPLICATE’

• 3. 

  The endorsement referred to in paragraph 2 shall be inserted in the ‘Remarks’ box of the duplicate movement certificate EUR.1.

• 4. 

  The duplicate, which shall bear the date of issue of the original movement certificate EUR.1, shall take effect as from that date.

Article 18

Issue of movement certificates EUR.1 on the basis of a proof of origin issued or made out previously

When originating products are placed under the control of a customs office in an ACP State or in the Community, it shall be possible to replace the original proof of origin by one or more movement certificates EUR.1 for the purpose of sending all or some of those products elsewhere within the ACP States or within the Community. The replacement movement certificate(s) EUR.1 shall be issued by the customs office under the control of which the products are placed.

Article 19

Conditions for making out an invoice declaration

• 1. 

  An invoice declaration as referred to in Article 14(1)(b) may be made out:

• 2. 

  An invoice declaration may be made out if the products concerned can be considered as products originating in the ACP States or in one of the other countries referred to in Article 6 and fulfil the other requirements of this Annex.

• 3. 

  The exporter making out an invoice declaration shall at any time, at the request of the customs authorities of the exporting country, produce all appropriate documents proving the originating status of the products concerned as well as fulfilment of the other requirements of this Annex.

• 4. 

  An invoice declaration shall be made out by the exporter by typing, stamping or printing on the invoice the delivery note or another commercial document, the declaration the text of which appears in Appendix 4 using one of the linguistic versions set out in that Appendix and in accordance with the provisions of the domestic law of the exporting country. If the declaration is handwritten, it shall be written in ink in printed characters.

• 5. 

  Invoice declarations shall bear the original signature of the exporter in manuscript. However, an approved exporter within the meaning of Article 20 shall not be required to sign such declarations provided that he gives the customs authorities of the exporting country a written undertaking that he accepts full responsibility for any invoice declaration which identifies him as if it had been signed in manuscript by him.

• 6. 

  An invoice declaration may be made out by the exporter when the products to which it relates are exported, or after exportation on condition that it is presented in the importing country no longer than two years after the importation of the products to which it relates.

Article 20

Approved exporter

• 1. 

  The customs authorities of the exporting country may authorise any exporter who makes frequent shipments of products under the provisions of this Regulation to make out invoice declarations irrespective of the value of the products concerned. An exporter seeking such authorisation shall offer to the satisfaction of the customs authorities all guarantees necessary to verify the originating status of the products as well as fulfilment of the other requirements of this Annex.

• 2. 

  The customs authorities may grant the status of approved exporter subject to any conditions which they consider appropriate.

• 3. 

  The customs authorities shall grant to the approved exporter a customs authorisation number which shall appear on the invoice declaration.

• 4. 

  The customs authorities shall monitor the use of the authorisation by the approved exporter.

• 5. 

  The customs authorities may withdraw the authorisation at any time. They shall do so where the approved exporter no longer offers the guarantees referred to in paragraph 1, does not fulfil the conditions referred to in paragraph 2 or otherwise makes incorrect use of the authorisation.

Article 21

Validity of proof of origin

• 1. 

  A proof of origin shall be valid for ten months from the date of issue in the exporting country, and must be submitted within that period to the customs authorities of the importing country.

• 2. 

  Proofs of origin which are submitted to the customs authorities of the importing country after the final date for presentation specified in paragraph 1 may be accepted for the purpose of applying preferential treatment where the failure to submit these documents by the final date set is due to exceptional circumstances.

• 3. 

  In other cases of late presentation, the customs authorities of the importing country may accept the proofs of origin where the products have been submitted before the final date.

Article 22

Transit procedure

When the products enter an ACP State other than the country of origin, a further period of validity of 4 months shall begin on the date on which the customs authorities in the country of transit enter the following in box 7 of the certificate EUR.1:

Article 23

Submission of proof of origin

Proofs of origin shall be submitted to the customs authorities of the importing country in accordance with the procedures applicable in that country. Those authorities may require a translation of a proof of origin and may also require the import declaration to be accompanied by a statement from the importer to the effect that the products meet the conditions required for the application of the provisions of this Regulation.

Article 24

Importation by instalments

Where, at the request of the importer and on the conditions laid down by the customs authorities of the importing country, dismantled or non-assembled products within the meaning of General Rule 2(a) of the Harmonised System falling within Sections XVI and XVII or heading Nos 7308 and 9406 of the Harmonised System are imported by instalments, a single proof of origin for such products shall be submitted to the customs authorities upon importation of the first instalment.

Article 25

Exemptions from proof of origin

• 1. 

  Products sent as small packages from private persons to private persons or forming part of travellers' personal luggage shall be admitted as originating products without requiring the submission of a proof of origin, provided that such products are not imported by way of trade and have been declared as meeting the requirements of this Annex and where there is no doubt as to the veracity of such a declaration. In the case of products sent by post, that declaration can be made on the customs declaration CN22/CN23 or on a sheet of paper annexed to that document.

• 2. 

  Imports which are occasional and consist solely of products for the personal use of the recipients or travellers or their families shall not be considered as imports by way of trade if it is evident from the nature and quantity of the products that no commercial purpose is in view.

• 3. 

  Furthermore, the total value of those products may not exceed EUR 500 in the case of small packages or EUR 1 200 in the case of products forming part of travellers' personal luggage.

Article 26

Information procedure for cumulation purposes

• 1. 

  When Articles 2(2) and 6(1) are applied, evidence of the originating status within the meaning of this Annex of the materials coming from the other ACP States, the Community or the OCT shall be given by a movement certificate EUR.1 or by the supplier's declaration, a specimen of which is given in Appendix 5A, given by the exporter in the State or OCT from which the materials came.

• 2. 

  When Articles 2(2), 6(2) and 6(9) are applied, evidence of the working or processing carried out in other ACP States, the Community, the OCT or South Africa shall be given by the supplier's declaration, a specimen of which appears in Appendix 5B, given by the exporter in the State or OCT from which the materials came.

• 3. 

  A separate supplier's declaration shall be given by the supplier for each consignment of material on the commercial invoice relating to that shipment or in an annex to that invoice, or on a delivery note or other commercial document relating to that shipment which describes the materials concerned in sufficient detail for them to be identified.

• 4. 

  The supplier's declaration may be made out on a pre-printed form.

• 5. 

  The suppliers' declarations shall be signed in manuscript. However, where the invoice and the supplier's declaration are established using electronic data-processing methods, the supplier's declaration need not be signed in manuscript provided the responsible official in the supplying company is identified to the satisfaction of the customs authorities in the State where the suppliers' declarations are drawn up. Those customs authorities may lay down conditions for the implementation of this paragraph.

• 6. 

  The supplier's declarations shall be submitted to the competent customs office in the exporting ACP State that has been requested to issue the movement certificate EUR.1.

• 7. 

  Suppliers' declarations made and information certificates issued before the date of entry into force of this Regulation in accordance with Article 26 of Protocol 1 to Annex V of the ACP-EU Partnership Agreement shall remain valid.

Article 27

Supporting documents

The documents referred to in Articles 15(3) and 19(3) used for the purpose of proving that products covered by a movement certificate EUR.1 or an invoice declaration can be considered as products originating in an ACP State or in one of the other countries referred to in Article 6 and fulfil the other requirements of this Annex may consist inter alia of the following:

Article 28

Preservation of proof of origin and supporting documents

• 1. 

  The exporter applying for the issue of a movement certificate EUR.1 shall keep the documents referred to in Article 15(3) for at least three years.

• 2. 

  The exporter making out an invoice declaration shall keep a copy of this invoice declaration as well as the documents referred to in Article 19(3) for at least three years.

• 3. 

  The customs authorities of the exporting country issuing a movement certificate EUR.1 shall keep the application form referred to in Article 15(2) for at least three years.

• 4. 

  The customs authorities of the importing country shall keep the movement certificates EUR.1 and the invoice declarations submitted to them for at least three years.

Article 29

Discrepancies and formal errors

• 1. 

  The discovery of slight discrepancies between the statements made in the proof of origin and those made in the documents submitted to the customs office for the purpose of carrying out the formalities for importing the products shall not ipso facto render the proof of origin null and void if it is duly established that that document does correspond to the products submitted.

• 2. 

  Obvious formal errors such as typing errors on a proof of origin should not cause that document to be rejected if those errors are not such as to create doubts concerning the correctness of the statements made in that document.

Article 30

Amounts expressed in euro

• 1. 

  For purposes of the application of Article 19(1)(b) and Article 25(3) in cases where products are invoiced in a currency other than euro, amounts in the national currencies of an ACP State, of the Member States and of the other countries or territories referred to in Article 6 equivalent to the amounts expressed in euro shall be fixed annually by each of the countries concerned.

• 2. 

  A consignment shall benefit from the provisions of Article 19(1)(b) or Article 25(3) by reference to the currency in which the invoice is drawn up, according to the amount fixed by the country concerned.

• 3. 

  The amounts to be used in any given national currency shall be the equivalent in that currency of the amounts expressed in euro as on the first working day of October. The amounts shall be communicated to the Commission by 15 October and shall apply from 1 January the following year. The Commission shall notify all countries concerned of the relevant amounts.

• 4. 

  A country may round up or down the amount resulting from the conversion of an amount expressed in euro into its national currency. The rounded-off amount may not differ from the amount resulting from the conversion by more than 5 per cent. A country may retain unchanged its national currency equivalent of an amount expressed in euro if, at the time of the annual adjustment provided for in paragraph 3, the conversion of that amount, before any rounding-off, results in an increase of less than 15 per cent in the national currency equivalent. The national currency equivalent may be retained unchanged if the conversion would result in a decrease in that equivalent value.

• 5. 

  The amounts expressed in euro shall be reviewed by the Commission. When carrying out that review, the Commission shall consider the desirability of preserving the effects of the limits concerned in real terms. For that purpose, it may decide to modify the amounts expressed in euro.

TITLE V

ARRANGEMENTS FOR ADMINISTRATIVE COOPERATION

Article 31

Mutual assistance

• 1. 

  The ACP States shall send the Commission specimens of the stamps used together with the addresses of the customs authorities competent to issue movement certificates EUR.1 and carry out the subsequent verification of movement certificates EUR.1 and invoice declarations.

Movement certificates EUR.1 and invoice declarations shall be accepted for the purpose of applying preferential treatment from the date the information is received by the Commission.

The Commission shall send that information to the customs authorities of the Member States.

• 2. 

  In order to ensure the proper application of this Annex, the Community, the OCT and the ACP States shall assist each other, through the competent customs administrations, in checking the authenticity of movement certificates EUR.1, invoice declarations or supplier's declarations and the correctness of the information given in those documents.

The authorities consulted shall provide the relevant information concerning the conditions under which a product has been made, indicating in particular the conditions in which the rules of origin have been complied with in the various ACP States, Member States and OCT concerned.

Article 32

Verification of proofs of origin

• 1. 

  Subsequent verifications of proofs of origin shall be carried out at random or whenever the customs authorities of the importing country have reasonable doubts as to the authenticity of such documents, the originating status of the products concerned or the fulfilment of the other requirements of this Annex.

• 2. 

  For the purposes of implementing paragraph 1, the customs authorities of the importing country shall return the movement certificate EUR.1 and the invoice, if it has been submitted, the invoice declaration, or copies of those documents to the customs authorities of the exporting country giving, where appropriate, the reasons for the enquiry. Any documents and information obtained suggesting that the information given on the proof or origin is incorrect shall be forwarded in support of the request for verification.

• 3. 

  Verification shall be carried out by the customs authorities of the exporting country. For that purpose, they shall have the right to call for any evidence and to carry out any inspection of the exporter's accounts or any other check considered appropriate.

• 4. 

  If the customs authorities of the importing country decide to suspend the granting of preferential treatment to the products concerned while awaiting the results of the verification, release of the products shall be offered to the importer subject to any precautionary measures judged necessary.

• 5. 

  The customs authorities requesting verification shall be informed of the results of that verification as soon as possible. Those results shall indicate clearly whether the documents are authentic and whether the products concerned can be considered as products originating in the ACP States or in one of the countries referred to in Article 6 and fulfil the other requirements of this Annex.

• 6. 

  If in cases of reasonable doubt there is no reply within ten months of the date of the verification request or if the reply does not contain sufficient information to determine the authenticity of the document in question or the real origin of the products, the requesting customs authorities shall, except in exceptional circumstances, refuse entitlement to the preferences.

• 7. 

  Where the verification procedure or any other information available appears to indicate that the provisions of this Annex are being contravened, appropriate enquires shall be carried out with due urgency to identify and prevent such contraventions.

Article 33

Verification of suppliers' declarations

• 1. 

  Verification of suppliers' declaration may be carried out at random or whenever the customs authorities of the importing State have reasonable doubts as to the authenticity of the document or the accuracy or completeness of the information concerning the true origin of the materials in question.

• 2. 

  The customs authorities to which a supplier's declaration is submitted may request the customs authorities of the State where the declaration was made to issue an information certificate, a specimen of which is given in Appendix 6. Alternatively, the customs authorities to which a supplier's declaration is submitted may request the exporter to produce an information certificate issued by the customs authorities of the State where the declaration was made.

A copy of the information certificate shall be preserved by the office which has issued it for at least three years.

• 3. 

  The requesting customs authorities shall be informed of the results of the verification as soon as possible. The results shall be such as to indicate positively whether the declaration concerning the status of the materials is correct.

• 4. 

  For the purpose of verification, suppliers shall keep a copy of the document containing the declaration together with all necessary evidence showing the true status of the materials for not less than three years.

• 5. 

  The customs authorities in the State where the supplier's declaration is drawn up shall have the right to call for any evidence or to carry out any check which they consider appropriate in order to verify the correctness of any supplier's declaration.

• 6. 

  Any movement certificate EUR.1 or invoice declaration issued or made out on the basis of an incorrect supplier's declaration shall be considered null and void.

Article 34

Penalties

Penalties shall be imposed on any person who draws up, or causes to be drawn up, a document which contains incorrect information for the purpose of obtaining preferential treatment for products.

Article 35

Free zones

• 1. 

  All necessary steps shall be taken to ensure that products traded under cover of a proof of origin or a supplier's declaration and which in the course of transport use a free zone situated in their territory are not replaced by other goods and do not undergo handling other than normal operations designed to prevent their deterioration.

• 2. 

  By way of exemption from the provisions of paragraph 1, when originating products are imported into a free zone under cover of a proof of origin and undergo treatment or processing, the authorities concerned shall issue a new EUR.1 certificate at the exporter's request provided that the treatment or processing undergone complies with the provisions of this Annex.

Article 36

Derogations

• 1. 

  On its own initiative or in response to a request from a beneficiary country the Commission may grant a beneficiary country a temporary derogation from the provisions of this Annex where:

• 2. 

  Such a temporary derogation shall be limited to the duration of the effect of the internal or external factors giving rise to it or the length of time needed for the beneficiary country to achieve compliance with the rules.

• 3. 

  A request for derogation shall be made in writing to the Commission. It shall state the reasons as indicated in paragraph 1 why a derogation is required and shall include appropriate supporting documents.

• 4. 

  Measures under this article shall be adopted in accordance with the procedure referred to in Article 247 and 247a of Regulation (EEC) 2913/92.

The Community shall respond positively to all requests by ACP States which are duly justified in accordance with this Article and which cannot cause serious injury to an established Community industry.

TITLE VI

CEUTA AND MELILLA

Article 37

Special conditions

• 1. 

  The term ‘Community’ used in this Annex shall not cover Ceuta and Melilla. The term ‘products originating in the Community’ shall not cover products originating in Ceuta and Melilla.

• 2. 

  The provisions of this Annex shall apply mutatis mutandis in determining whether products may be deemed as originating in the ACP States when imported into Ceuta and Melilla.

• 3. 

  Where products wholly obtained in Ceuta, Melilla or the Community undergo working and processing in the ACP States, they shall be considered as having been wholly obtained in the ACP States.

• 4. 

  When materials undergo further working or processing in the ACP States working or processing carried out in Ceuta, Melilla or the Community shall be considered as having been carried out in the ACP States.

• 5. 

  For the purpose of implementation of paragraphs 3 and 4 of this Article, the insufficient operations listed in Article 5 shall not be considered as working or processing.

• 6. 

  Ceuta and Melilla shall be considered as a single territory.

TITLE VII

TRANSITIONAL AND FINAL PROVISIONS

Article 38

Transitional provision for goods in transit or storage

• 1. 

  The provisions of this Regulation may be applied to goods exported from any of the regions or states listed in Annex I accompanied by movement certificates EUR.1 issued in accordance with Article 15 of Protocol 1 to Annex V of the ACP-EU Partnership Agreement within ten months of the date of entry into force of this Regulation.

• 2. 

  The provisions of this Regulation may be applied to goods exported from any of the regions or states listed in Annex I which comply with the provisions of this Annex and which on the date of entry into force of this Regulation are either in transit or are in the Community in temporary storage in customs warehouses or in free zones, subject to the submission to the customs authorities of the importing country, within ten months of that date, of a movement certificate EUR.1 issued retrospectively by the customs authorities of the exporting country together with the documents showing that the goods have been transported directly in accordance with the provisions of Article 12 of this Annex.

Article 39

Appendices

The Appendices to this Annex shall form an integral part thereof.

Appendix 1

Introductory notes to the list in this Annex

Note 1:

The list sets out the conditions required for all products to be considered as sufficiently worked or processed within the meaning of Article 4 of this Annex.

Note 2:

• 1. 

  First two columns in the list describe the product obtained. The first column gives the heading number or chapter number used in the Harmonised System and the second column gives the description of goods used in that system for that heading or chapter. For each entry in the first two columns a rule is specified in columns 3 or 4. Where, in some cases, the entry in the first column is preceded by an ‘ex’, this signifies that the rules in columns 3 or 4 apply only to the part of that heading as described in column 2.

• 2. 

  Where several heading numbers are grouped together in column 1 or a chapter number is given and the description of products in column 2 is therefore given in general terms, the adjacent rules in columns 3 or 4 apply to all products which, under the Harmonised System, are classified in headings of the chapter or in any of the headings grouped together in column 1.

• 3. 

  Where there are different rules in the list applying to different products within a heading, each indent contains the description of that part of the heading covered by the adjacent rules in columns 3 or 4.

• 4. 

  Where, for an entry in the first two columns, a rule is specified in both columns 3 and 4, the exporter may opt, as an alternative, to apply either the rule set out in column 3 or that set out in column 4. If no origin rule is given in column 4, the rule set out in column 3 has to be applied.

Note 3:

• 1. 

  The provisions of Article 4 of this Annex concerning products having acquired originating status which are used in the manufacture of other products apply regardless of whether this status has been acquired inside the factory where these products are used or in another factory in the Community or in the ACP States.

Example:

An engine of heading No 8407, for which the rule states that the value of the non-originating materials which may be incorporated may not exceed 40 per cent of the ex-works price, is made from ‘other alloy steel roughly shaped by forging’ of heading No ex 7224.

If this forging has been forged in the Community from a non-originating ingot, it has already acquired originating status by virtue of the rule for heading No ex 7224 in the list. The forging can then count as originating in the value calculation for the engine regardless of whether it was produced in the same factory or in another factory in the Community. The value of the non-originating ingot is thus not taken into account when adding up the value of the non-originating materials used.

• 2. 

  The rule in the list represents the minimum amount of working or processing required and the carrying out of more working or processing also confers originating status; conversely, the carrying out of less working or processing cannot confer originating status. This if a rule provides that non-originating material at a certain level of manufacture may be used, the use of such material at an earlier stage of manufacture is allowed and the use of such material at a later stage is not.

• 3. 

  Without prejudice to Note 3.2 where a rule states that ‘materials of any heading’ may be used, materials of the same heading as the product may also be used, subject, however, to any specific limitations which may also be contained in the rule. However, the expression ‘manufacture from materials of any heading, including other materials of heading No …’ means that only materials classified in the same heading as the product of a different description than that of the product as given in column 2 of the list may be used.

• 4. 

  When a rule in the list specifies that a product may be manufactured from more than one material, this means that any one or more materials may be used. It does not require that all be used.

Example:

The rule for fabrics of heading Nos 5208 to 5212 provides that natural fibres may be used and those chemical materials, among other materials, may also be used. This does not mean that both have to be used; it is possible to use one or the other or both.

• 5. 

  Where a rule in the list specifies that a product must be manufactured from a particular material, the condition obviously does not prevent the use of other materials which, because of their inherent nature, cannot satisfy the rule. (See also Note 6.3 below in relation to textiles).

Example:

The rule for prepared foods of heading No 1904 which specifically excludes the use of cereals and their derivatives does not prevent the use of mineral salts, chemicals and other additives which are not products from cereals.

However, this does not apply to products which, although they cannot be manufactured from the particular materials specified in the list, can be produced from a material of the same nature at an earlier stage of manufacture.

Example:

In the case of an article of apparel of ex Chapter 62 made from non-woven materials, if the use of only non-originating yarn is allowed for this class of article, it is not possible to start from non-woven cloth — even if non-woven cloths cannot normally be made from yarn. In such cases, the starting material would normally be at the stage before yarn — that is the fibre stage.

• 6. 

  Where, in a rule in the list, two percentages are given for the maximum value of non-originating materials that can be used, then these percentages may not be added together. In other words, the maximum value of all the non-originating materials used may never exceed the highest of the percentages given. Furthermore, the individual percentages must not be exceeded in relation to the particular materials they apply to.

Note 4:

• 1. 

  The term ‘natural fibres’ is used in the list to refer to fibres other than artificial or synthetic fibres. It is restricted to the stages before spinning takes place, including waste, and, unless otherwise specified, includes fibres that have been carded, combed or otherwise processed but not spun.

• 2. 

  The term ‘natural fibres’ includes horsehair of heading No 0503, silk of heading Nos 5002 and 5003 as well as the wool fibres, fine or coarse animal hair of heading Nos 5101 to 5105, the cotton fibres of heading Nos 5201 to 5203 and the other vegetable fibres of heading Nos 5301 to 5305.

• 3. 

  The terms ‘textile pulp’, ‘chemical materials’ and ‘paper-making materials’ are used in the list to describe the materials not classified in Chapters 50 to 63, which can be used to manufacture artificial, synthetic or paper fibres or yarns.

• 4. 

  The term ‘man-made staple fibres’ is used in the list to refer to synthetic or artificial filament tow, staple fibres or waste, of heading Nos 5501 to 5507.

Note 5:

• 1. 

  Where for a given product in the list a reference is made to this note, the conditions set out in column 3 shall not be applied to any basic textile materials, used in the manufacture of this product, which, taken together, represent 10 per cent or less of the total weight of all the basic textile materials used. (See also Notes 5.3 and 5.4 below).

• 2. 

  However, the tolerance mentioned in Note 5.1 may only be applied to mixed products which have been made from two or more basic textile materials.

The following are the basic textile materials:

Example:

A yarn of heading No 5205 made from cotton fibres of heading No 5203 and synthetic staple fibres of heading No 5506 is a mixed yarn. Therefore, non-originating synthetic staple fibres that do not satisfy the origin rules (which require manufacture from chemical materials or textile pulp) may be used up to a weight of 10 per cent of the yarn.

Example:

A woollen fabric of heading No 5112 made from woollen yarn of heading No 5107 and synthetic yarn of staple fibres of heading No 5509 is a mixed fabric. Therefore synthetic yarn which does not satisfy the origin rules (which require manufacture from chemical materials or textile pulp) or woollen yarn that does not satisfy the origin rules (which require manufacture from natural fibres, not carded or combed or otherwise prepared for spinning) or a combination of the two may be used provided their total weight does not exceed 10 per cent of the weight of the fabric.

Example:

Tufted textile fabric of heading No 5802 made from cotton yarn of heading No 5205 and cotton fabric of heading No 5210 is only a mixed product if the cotton fabric is itself a mixed fabric being made from yarns classified in two separate headings or if the cotton yarns used are themselves mixtures.

Example:

If the tufted textile fabric concerned had been made from cotton yarn of heading No 5205 and synthetic fabric of heading No 5407, then, obviously, the yarns used are two separate basic textile materials and the tufted textile fabric is accordingly a mixed product.

• 3. 

  In the case of products incorporating ‘yarn made of polyurethane segmented with flexible segments of polyether whether or not gimped’ this tolerance is 20 per cent in respect of this yarn.

• 4. 

  In the case of products incorporating ‘strip consisting of a core of aluminium foil or of a core of plastic film whether or not coated with aluminium powder, of a width not exceeding 5 mm, sandwiched by means of an adhesive between two layers of plastic film’, this tolerance is 30 per cent in respect of this strip.

Note 6:

• 1. 

  In the case of those textile products, which are marked in the list by a footnote referring to this Introductory Note, textile trimmings and accessories which do not satisfy the rule set out in the list in column 3 for the made up products concerned may be used provided that their weight does not exceed 10 % of the total weight of all the textile materials incorporated.

Textile trimmings and accessories are those classified in Chapters 50 to 63. Linings and interlinings are not being regarded as trimmings or accessories.

• 2. 

  Any non-textile trimmings and accessories or other materials used which contain textiles do not have to satisfy the conditions set out in column 3 even though they fall outside the scope of Note 3.5.

• 3. 

  In accordance with Note 3.5, any non-originating non-textile trimmings and accessories or other product, which do not contain any textiles, may anyway, be used freely where they cannot be made from the materials listed in column 3.

For example (1), if a rule in the list says that for a particular textile item, such as a blouse, yarn must be used, this does not prevent the use of metal items, such as buttons, because they cannot be made from textile materials.

• 4. 

  Where a percentage rule applies, the value of trimmings and accessories must be taken into account when calculating the value of the non-originating materials incorporated.

Note 7:

• 1. 

  For the purposes of heading Nos ex 2707, 2713 to 2715, ex 2901, ex 2902 and ex 3403, the ‘specific processes’ are the following:

• 2. 

  For the purposes of heading Nos 2710, 2711 and 2712, the ‘specific processes’ are the following:

• 3. 

  For the purposes of heading Nos ex 2707, 2713 to 2715, ex 2901, ex 2902 and ex 3403, simple operations such as cleaning, decanting, desalting, water separation, filtering, colouring, marking, obtaining a sulphur content as a result of mixing products with different sulphur contents, any combination of these operations or like operations do not confer origin.

• (1) 

  This example is given for the purpose of explanation only. It is not legally binding.

• (2) 

  See additional Explanatory Note 4(b) to Chapter 27 of the Combined Nomenclature.

Appendix 2

List of working or processing required to be carried out on non-originating materials in order that the product manufactured can obtain originating status

The products mentioned in the list may not all be covered by this Regulation. It is therefore necessary to consult the other parts of this Regulation.