DECISION No 1/89 OF THE ACP-EEC COUNCIL OF MINISTERS of 30 October 1989 amending Protocol No 1 to the Third ACP-EEC Convention concerning the definition of the concept of 'originating products' and methods of administrative cooperation

THE ACP-EEC COUNCIL OF MINISTERS,

Having regard to the Third ACP-EEC Convention signed in Lomé on 8 December 1984, and in particular Article 138 thereof,

Having regard to Protocol No 1 to the Convention concerning the definition of the concept of 'originating products' and methods of administrative cooperation, and in particular Article 27 thereof,

Whereas the origin rules contained in Protocol No 1 are based on the use of the Customs Cooperation Council Nomenclature; whereas the Customs Cooperation Council approved the International Convention on the Harmonized Commodity Description and Coding System on 14 June 1983; whereas the said Convention provides that, as from 1 January 1988, the harmonized system will replace the said nomenclature for the purposes of international trade; whereas it is therefore necessary to adapt the rules of origin contained in Protocol No 1;

Whereas, in the light of experience, the presentation of the origin rules could be improved by grouping all the exceptions to the basic change of heading rule into one list and by inserting detailed guidance on how it should be interpreted;

Whereas it is necessary to amend Articles 1, 3 and 4 and the Explanatory Notes in Annex I to Protocol No 1 as a result of the adoption of a single list;

Whereas it is therefore appropriate, for the proper functioning of the Third ACP-EEC Convention, to incorporate in a single text all the provisions in question with a view to facilitating the work of users and customs administrations,

HAS DECIDED AS FOLLOWS:

Article 1

Protocol No 1 is hereby replaced by the text annexed to this Decision.

Article 2

1. Products which were exported before 1 January 1990, accompanied by a movement certificate EUR. 1 or form EUR. 2, shall be considered as originating under the rules in force on 1 January 1990.

2. Movement certificates EUR. 1, forms EUR. 2 or supplier's declarations issued or made out before 1 January 1990 under the rules in force before that date shall be accepted up to and including 31 October 1990 according to the rules in force when they were issued or made out.

3. Articles 7 (2) and 19 of Protocol No 1 shall apply in the cases of goods exported before 1 January 1990 and retrospective or duplicate movement certificates may be issued under the rules in force before that date.

Article 3

This Decision shall be applicable as from 1 January 1990.

Done at Luxembourg, 30 October 1989.

For the ACP-EEC Council of Ministers

R. DUMAS

ANNEX

PROTOCOL 1

concerning the definition of the concept of 'originating products' and methods of administrative cooperation

TITLE I

DEFINITION OF THE CONCEPT OF ORIGINATING PRODUCTS

Article 1

1. For the purpose of implementing the Convention and without prejudice to paragraphs 3 and 4, the following products shall be considered as products originating in an ACP State, provided that they have been transported directly, within the meaning of Article 5:

(a) products wholly obtained in one or more ACP States;

(b)products obtained in one or more ACP States in the manufacture of which products other than those referred to in (a) are used, provided that the said products have undergone sufficient working or processing within the meaning of Article 3.

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

3. When products wholly obtained in the Community or in the countries and territories defined in Explanatory Note 5 undergo working or processing in one or more ACP States, they shall be considered as having been wholly produced in that or those ACP States, provided that the products have been transported directly within the meaning of Article 5.

4. Working and processing carried out in the Community or in the countries and territories, shall be considered as having been carried out in one or more ACP States, when the final products undergo working or processing in one or more ACP States, provided that the products have been transported directly within the meaning of Article 5.

5. For the purpose of implementing the previous paragraphs, and provided that all the conditions laid down in those paragraphs are fulfilled, the products obtained in two or more ACP States shall be considered as products originating in the ACP State where the last working or processing took place. For this purpose the working or processing listed in Article 3 (4) (a), (b), (c) and (d) shall not be considered as working or processing, nor shall a combination of such working or of such processing.

6. The products set out in Annex II shall be temporarily excluded from the scope of this Protocol. Nevertheless, the arrangements regarding administrative cooperation shall apply, mutatis mutandis, to these products.

Article 2

The following shall be considered as wholly obtained either in one or more ACP States, or in the Community or in the countries and territories within the meaning of Article 1 (1) (a) and (3):

(a) mineral products extracted from their soil or from their seabed;

(b)vegetable products harvested therein;

(c)live animals born and raised therein;

(d)products from live animals raised therein;

(e)products obtained by hunting or fishing conducted therein;

(f)products of sea fishing and other products taken from the sea by their vessels;

(g)products made aboard their factory ships exclusively from products referred to in subparagraph (f);

(h)used articles collected there fit only for the recovery of raw materials;

(i)waste and scrap resulting from manufacturing operations conducted therein;

(j)goods produced there exclusively from the products specified in subparagraphs (a) to (i).

Article 3

1. For the purposes of Article 1, non-originating materials shall be considered to be sufficiently worked or processed when the product obtained is classified in a heading which is different from those in which all the non-originating materials used in its manufacture are classified, subject to paragraphs 2, 3 and 4 of this Article.

2. For a product mentioned in columns 1 and 2 of the list in Annex III, the conditions set out in column 3 for the product concerned shall apply instead of the rule laid down in paragraph 1.

The expressions 'chapters' and 'headings' used in this Protocol shall mean the chapters and the headings (four digit codes) used in the nomenclature which makes up the 'Harmonized Commodity Description and Coding System' (hereinafter referred to as the harmonized system).

The expression 'classified' shall refer to the classification of a product or material under a particular heading.

3. Notwithstanding the provisions of paragraph 1 and without prejudice to the other provisions of this Title, the incorporation of non-originating materials and parts in a given product obtained shall make such products lose their originating status only if the value of the said materials and parts incorporated exceeds 5 % of the value of the finished product.

4. For the purpose of implementing paragraphs 1 and 2, the following shall always be considered as insufficient working or processing to confer the status of originating products, whether or not there is a change of heading:

(a) operations to ensure the preservation of merchandise in good condition during transport and storage (ventilation, spreading out, drying, chilling, placing in salt, sulphur dioxide or other aqueous solutions, removal of damaged parts, and like operations);

(b)simple operations consisting of removal of dust, sifting or screening, sorting, classifying, matching (including the making-up of sets of articles), washing, painting, cutting up;

(c) (i) changes of packaging and breaking up and assembly of consignments;

(ii)simple placing in bottles, flasks, bags, cases, boxes, fixing on cards or boards etc., and all other simple packaging operations;

(d)affixing marks, labels and other like distinguishing signs on products or their packaging;

(e) (i)simple mixing of products of the same kind where one or more components of the mixtures do not meet the conditions laid down in this Protocol to enable them to be considered as originating either in an ACP State, the Community or in the countries and territories;

(ii)simple mixing of products of different kinds unless one or more components of the mixture meet the conditions laid down in this Protocol to enable them to be considered as originating either in an ACP State, in the Community, or in the countries and territories and provided that such components contribute in determining the essential characteristics of the finished product.

(f)simple assembly of parts of articles to constitute a complete article;

(g)a combination of two or more operations specified in subparagraphs (a) to (f);

(h)slaughter of animals.

Article 4

The term 'value' in the list in Annex III shall mean the customs value at the time of the import of the non-originating materials used or, if this is not known or cannot be ascertained, the first ascertainable price paid for the materials in the territory concerned.

Where the value of the originating materials used needs to be established, the preceding subparagraph shall be applied mutatis mutandis.

The term 'ex-works price' in the list in Annex III shall mean the ex-works price of the product obtained minus any internal taxes which are, or may be, repaid when the product obtained is exported.

Article 5

1. For the purpose of implementing Article 1 (1), (3) and (4), products whose transport is effected without entering into territory other than that of the parties concerned shall be considered to have been transported direct from the ACP States to the Community or from the Community or the countries and territories to the ACP States. Goods constituting one single consignment may be transported through territory other than that of the ACP States or the Community or the countries and territories, with, should the occasion arise, transhipment or temporary warehousing in such territory, provided that the crossing of the latter territory is justified for geographical reasons or the needs of transport and that the products have not entered into commerce or been delivered for home use and have not undergone operations other than unloading, reloading or any operation designed to preserve them in good condition.

Interruptions or changes in the method of transport due to force majeure or consequent upon conditions at sea shall not affect the application of the preferential treatment laid down in this Protocol, provided that the goods have not, during these interruptions or changes, entered into commerce or been delivered for home use and have not undergone any operations other than those designed to preserve them in good condition.

2. Evidence that the conditions referred to in paragraph 1 have been fulfilled shall be supplied to the responsible customs authorities in the Community by the production of:

(a) a through bill of lading issued in the exporting beneficiary country covering the passage through the country of transit;

(b)or a certificate issued by the customs authorities of the country of transit:

- giving an exact description of the goods,

-stating the dates of unloading and reloading of the goods or of their embarkation or disembarkation, identifying the ships used,

-certifying the conditions under which the goods remained in the transit country;

(c)or failing these, any substantiating documents.

TITLE II

ARRANGEMENTS FOR ADMINISTRATIVE COOPERATION

Article 6

1. (a) Evidence of originating status, within the meaning of this Protocol, of products is given by a movement certificate EUR. 1 of which a specimen appears in Annex IV to this Protocol.

(b)However, the evidence of originating status, within the meaning of this Protocol, of products which form the subject of postal consignments (including parcels), provided that they consist only of originating products and that the value does not exceed ECU 2 590 per consignment, is given by a form EUR. 2, of which a specimen appears in Annex V to this Protocol.

(c)Up to and including 30 April 1989 the ecu to be used in any given national currency of a Member State of the Community shall be the equivalent in that national currency of the ecu as at 1 October 1986. For each successive period of two years it shall be the equivalent in that national currency of the ecu as at the first working day in October in the year immediately preceding that two-year period.

(d)Revised amounts replacing the amounts expressed in ecus mentioned above and in Article 16 (2), may be introduced by the Community at the beginning of any successive two-year period if necessary and shall be notified by the Community to the Customs Cooperation Committee not later than one month before they shall come into force. These amounts shall be, in any event, such as to ensure that the value of the limits as expressed in the currency of any Member State shall not decline.

(e)If the goods are invoiced in the currency of another Member State of the Community, the importing State shall recognize the amount notified by the State concerned.

2. Where, at the request of the person declaring the goods at the customs, a dismantled or non-assembled article falling within Chapter 84 or 85 of the harmonized system is imported by instalments on the conditions laid down by the competent authorities, it shall be considered to be a single article and a movement certificate may be submitted for the whole article upon import of the first instalment.

3. 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 are not separately invoiced are regarded as one with the piece of equipment, machine, apparatus or vehicle in question.

4. Sets, as defined in General Rule 3 of the harmonized system shall be regarded as originating when all component articles are originating products. Nevertheless, when a set is composed of originating and non-originating articles, the set as a whole shall be regarded as originating provided that the value of the non-originating articles does not exceed 15 % of the total value of the set.

Article 7

1. A movement certificate EUR. 1 shall be issued by the customs authorities of the exporting ACP State when the goods to which it relates are exported. It shall be made available to the exporter as soon as actual export has been effected or ensured.

2. In exceptional circumstances a movement certificate EUR. 1 may also be issued after export of the goods to which it relates if it was not issued at the time of export because of errors or involuntary omissions or special circumstances. In this case, the certificate shall bear a special reference to the conditions in which it was issued.

3. A movement certificate EUR. 1 shall be issued only on application having been made in writing by the exporter. Such application shall be made on a form, of which a specimen appears in Annex IV to this Protocol, which shall be completed in accordance with this Protocol.

4. A movement certificate EUR. 1 may be issued only where it can serve as the documentary evidence required for the purpose of implementing the Convention.

5. Applications for movement certificates EUR. 1 must be preserved for at least three years by the customs authorities of the exporting country.

Article 8

1. The movement certificate EUR. 1 shall be issued by the customs authorities of the exporting ACP State, if the goods can be considered 'originating products' within the meaning of this Protocol.

2. For the purpose of verifying whether the conditions stated in paragraph 1 have been met, the customs authorities shall have the right to call for any documentary evidence or to carry out any check which they consider appropriate.

3. It shall be the responsibility of the customs authorities of the exporting State to ensure that the forms referred to in Article 9 are duly completed. In particular, they shall check whether the space reserved for the description of the goods has been completed in such a manner as to exclude all possibility of fraudulent additions. To this end, the description of the goods must be indicated without leaving any blank lines. Where the space is not completely filled a horizontal line must be drawn below the last line of the description, the empty space being crossed through.

4. The date of issue of the movement certificate must be indicated in the part of the certificate reserved for the customs authorities.

Article 9

1. Movement cerificates EUR. 1 shall be made out on the form of which a specimen appears in Annex IV to this Protocol. This form shall be printed in one or more of the languages in which the Convention is drawn up. Certificates shall be made out in one of these languages and in accordance with the provisions of the domestic law of the exporting State; if they are handwritten, they shall be completed in ink and in capital letters.

2. Each certificate shall measure 210 × 297 mm, a tolerance of up to plus 8 mm or minus 5 mm in the length may be allowed. The paper used must be white-sized writing paper not containing mechanical pulp and weighing not less than 25 g/m2. It shall have a printed green guilloche pattern background making any falsification by mechanical or chemical means apparent to the eye.

3. The exporting States may reserve the right to print the certificates themselves or may have them printed by approved printers. In the latter case, each certificate must include a reference to such approval. Each certificate must bear the name and address of the printer or a mark by which the printer can be identified. It shall also bear a serial number, either printed or not, by which it can be identified.

Article 10

1. Under the responsibility of the exporter, he or his authorized representative shall request the issue of a movement certificate EUR. 1.

2. The exporter or his representative shall submit with his request any appropriate supporting document proving that the goods to be exported are such as to qualify for the issue of a movement certificate EUR. 1.

Article 11

1. A movement certificate EUR. 1 must be submitted, within 10 months of the date of issue by the customs authorities of the exporting State, to the customs authorities of the importing State where the goods are entered.

2. When the products enter a port of an ACP State or country or territory other than the country of origin, a further period of validity of 10 months shall commence on the date on which the customs authorities in the port of transit enter the following in box 7 of the certificate EUR. 1:

- the word 'transit',

- the name of the country of transit,

- a date stamp.

This procedure shall enter into force after a specimen of the date stamp used has been communciated to the Commission.

The Commission shall communicate this information to the customs authorities of the Member States.

3. It shall at any time be possible to replace one or more movement certificates EUR. 1 by one or more other movement certificates EUR. 1 provided that this is done at the customs office where the goods are located.

Article 12

Movement certificates EUR. 1 shall be submitted to customs authorities in the importing State, in accordance with the procedures laid down by that State. The said authorities may require a translation of a certificate. They may also require the import declaration to be accompanied by a statement from the importer to the effect that the goods meet the conditions required for the implementation of the Convention.

Article 13

1. A movement certificate EUR. 1 which is submitted to the customs authorities of the importing State after the final date of presentation specified in Article 11 may be accepted for the purpose of applying preferential treatment, where the failure to submit the certificate by the final date set is due to reasons of force majeure or exceptional circumstances.

2. In other cases of belated presentation, the customs authorities of the importing State may accept the certificates where the goods have been submitted to them before the said final date.

Article 14

The discovery of slight discrepancies between the statements made in the movement certificate EUR. 1 and those made in the documents submitted to the customs office for the purpose of carrying out the formalities for importing the goods shall not ipso facto render the certificate null and void if it is duly established that the certificate does correspond to the goods submitted.

Article 15

Form EUR. 2, a specimen of which appears in Annex V, shall be completed by the exporter. It shall be made out in one of the languages in which the Convention is drawn up and in accordance with the provisions of the domestic law of the exporting State. If it is handwritten it must be completed in ink and in capital letters.

Form EUR. 2 shall consist of a single sheet measuring 210×148 mm. The paper used shall be white-sized writing paper not containing mechanical pulp and weighing not less than 64 g/m2.

The exporting States may reserve the right to print the forms themselves or may have them printed by printers they have approved. In the latter case each form must include a reference to such approval. In addition, each form shall bear the distinctive sign attributed to the approved printer and a serial number, either printed or not, by which it can be identified.

A form EUR. 2 shall be completed for each postal consignment. After completing and signing the form, the exporter shall, in the case of consignments by parcel post, attach the form to the dispatch note. In the case of consignment by letter post, the exporter shall insert the form inside the package.

These provisions do not exempt exporters from complying with any other formalities required by customs or postal regulations.

Article 16

1. Goods sent as small packages to private persons or forming part of travellers' personal luggage shall be admitted as originating products without requiring the production of a movement certificate EUR. 1 or the completion of form EUR. 2, provided that such goods are not imported by way of trade and have been declared as meeting the conditions required for the application of these provisions, and where there is no doubt as to the veracity of such declaration.

2. Imports which are occasional and consist solely of goods 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 goods that no commercial purpose is in view. Furthermore, the total value of these goods must not exceed ECU 180 in the case of small packages or ECU 515 in the case of the contents of travellers' personal luggage.

Article 17

1. Goods sent from an ACP State for exhibition in a country other than an ACP State, a Member State or a 'country or territory' and sold after the exhibition for importation into the Community shall benefit on importation from the provisions of the Convention on condition that the goods meet the requirements of this Protocol entitling them to be recognized as originating in an ACP State and provided that it is shown to the satisfaction of the customs authorities that:

(a) an exporter has consigned these goods from an ACP State to the country in which the exhibition is held and has exhibited them there;

(b)the goods have been sold or otherwise disposed of by that exporter to someone in the Community;

(c)the goods have been consigned during the exhibition or immediately thereafter to the Community in the State in which they were sent for exhibition;

(d)the goods have not, since they were consigned for exhibition, been used for any purpose other than demonstration at the exhibition.

2. A movement certificate EUR. 1 must be produced to the customs authorities in the normal manner. The name and address of the exhibition must be indicated thereon. Where necessary, additional documentary evidence of the nature of the goods and 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 organized for private purposes in shops or business premises with a view to the sale of foreign goods, and during which the goods remain under customs control.

Article 18

1. When a certificate is issued within the meaning of Article 7 (2) of this Protocol after the goods to which it relates have actually been exported, the exporter must in the application referred to in Article 7 (3) of this Protocol:

- indicate the place and date of export of the goods to which the certificate relates,

-certify that no movement certificate EUR. 1 was issued at the time of export of the goods in question, and state the reasons.

2. 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.

Certificates issued retrospectively must be endorsed with one of the following phrases: 'NACHTRAEGLICH AUSGESTELLT', 'DELIVRE A POSTERIORI', 'RILASCIATO A POSTERIORI', 'AFGEGEVEN A POSTERIORI', 'ISSUED RETROSPECTIVELY', 'UDSTEDT EFTERFOELGENDE', AAÊAEÏOEAAÍ AAÊ ÔÙÍ ÕÓÔAAÑÙÍ', 'EXPEDIDO A POSTERIORI', 'EMITIDO A POSTERIORI'.

Article 19

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.

The duplicate issued in this way must be endorsed with one of the following words: 'DUPLIKAT', 'DUPLICATA', 'DUPLICATO', 'DUPLICAAT', 'DUPLICATE', 'ÁÍÔÉÃÑÁOEÏ', 'DUPLICADO', 'SEGUNDA VIA'.

Article 20

1. When paragraphs 2, 3 and 4 of Article 1 are applied, for the issue of a movement certificate EUR. 1, the competent customs office in the ACP State requested to issue the certificate for products in the manufacture of which products coming from other ACP States, the Community or 'countries or territories' are used, shall take into consideration the declaration, of which a specimen appears in Annex VI, given by the exporter in the State, country or territory from which it came, either on the commercial invoice applicable to these products, or on a supporting document to that invoice.

2. The submission of the information certificate, issued under the conditions set out in Article 21 and of which a specimen appears in Annex VII, may however be requested of the exporter by the customs office concerned, either for checking the authenticity and accuracy of information given on the declaration provided for in paragraph 1, or for obtaining additional information.

Article 21

The information certificate concerning the products taken into use shall be issued at the request of the exporter of these products, either in the circumstances envisaged in Article 20 (2), or at the initiative of this exporter, by the competent customs office in the State, country or territory from which these goods were exported. It shall be made out in duplicate. One copy shall be given to the exporter who has requested it, who shall send it either to the exporter of the final products or to the customs office where the issue of the movement certificate EUR. 1 for these products has been requested. The second copy shall be preserved by the office which has issued it for at least three years.

Article 22

The ACP States shall take all necessary steps to ensure that goods traded under cover of a movement certificate EUR. 1, and which in the course of transport use a free zone situated in their territory, are not replaced by other goods and that they do not undergo handling other than normal operationsdesigned to prevent their deterioration.

Article 23

1. The ACP States shall send to 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 forms EUR. 2.

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

2. In order to ensure the proper application of this Title, the Member States, the countries and territories and the ACP States shall assist each other, through their respective customs administrations, in checking the authenticity of movement certificates EUR. 1 and the accuracy of the information concerning the actual origin of the products concerned and the declarations by exporters on forms EUR. 2 and the authenticity and accuracy of the information certificates referred to in Article 20.

Article 24

Penalties shall be imposed on any person who, in order to enable goods to be accepted as eligible for preferential treatment, draws up, or causes to be drawn up, either a document which contains incorrect particulars for the purpose of obtaining a movement certificate EUR. 1 or a form EUR. 2 containing incorrect particulars.

Article 25

1. Subsequent verifications of movement certificates EUR. 1 and of forms EUR. 2 shall 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 of the information regarding the true origin of thegoods in question.

2. For the purpose of implementing paragraph 1, the customs authorities of the importing State shall return the movement certificate EUR. 1 or form EUR. 2, or a photocopy thereof, to the customs authorities of the exporting State, giving, where appropriate, the reasons of form or substance for an inquiry. The invoice, if it has been submitted, or a copy thereof, shall be attached to the certificate EUR. 1 or form EUR. 2 and the customs authorities shall forward any information that has been obtained suggesting that the particulars given on the said certificate or the said form are inaccurate.

If the customs authorities of the importing State decide to suspend execution of the provisions of the Convention while awaiting the results of the verification, they shall offer to release the goods to the importer subject to any precautionary measures judged necessary.

3. The customs authorities of the importing State shall be informed of the results of the verification within three months. These results must be such as to make it possible to determine whether the disputed movement certificate EUR. 1 or form EUR. 2 applied to the goods actually exported, and whether these goods can, in fact, qualify for the application of the preferential arrangements.

When such disputes cannot be settled between the customs authorities of the importing State and those of the exporting State, or when they raise a question as to the interpretation of this Protocol, they shall be submitted to the Customs Cooperation Committee provided for in Article 28.

In all cases the settlement of disputes between the importer and the customs authorities of the importing State shall be under the legislation of the said State.

Article 26

The subsequent verification of the information certificate referred to in Article 20 shall be carried out in the circumstances envisaged in Article 25 following a similar procedure to that envisaged in that Article.

Article 27

In accordance with Article 138 of the Convention, the Council of Ministers shall examine annually, or whenever the ACP States or the Community so requests, the application of the provisions of this Protocol and their economic effects with a view to making any necessary amendments or adaptations.

The Council of Ministers shall take into account among other elements the effects on the rules of origin of technological developments.

The decisions taken shall be implemented as soon as possible.

Article 28

1. A Customs Cooperation Committee shall be set up and charged with carrying out administrative cooperation with a view to the correct and uniform application of this Protocol and with carrying out any other task in the customs field which may be entrusted to it.

2. The Committee shall meet regularly, in particular to prepare the decisions of the Council of Ministers pursuant to Article 27.

3. The Committee shall take decisions on derogations from this Protocol, under the conditions laid down in Article 30.

4. The Committee shall be composed on the one hand of experts of Member States and of officials of the Commission who are responsible for customs questions, and on the other hand of experts representing the ACP States and of officials of regional groupings of the ACP States who are responsible for customs questions. The Committee may call upon appropriate expertise where necessary.

Article 29

The Customs Cooperation Committee shall examine regularly the effect on the ACP States and in particular on the least-developed ACP States of the application of the rules of origin and shall recommend to the Council of Ministers appropriate measures.

Article 30

1. Derogations from this Protocol may be adopted by the Committee where the development of existing industries or the creation of new industries justifies them. The ACP State or States concerned shall, either before or when the ACP States submit the matter to the Committee, notify the Community of its request for a derogation together with the reasons for the request in accordance with Explanatory Note 11.

2. The examination of requests shall in particular take into account:

(a) the level of development or the geographical situation of the ACP State or States concerned;

(b)cases where the application of the existing rules of origin would affect significantly the ability of an existing industry in an ACP State to continue its exports to the Community, with particular reference to cases where this could lead to cessation of its activities;

(c)specific cases where it can be clearly demonstrated that significant investment in an industry could be deterred by the rules of origin and where a derogation favouring the realization of the investment programme would enable these rules to be satisfied by stages.

3. In every case an examination shall be made to ascertain whether the rules relating to cumulation of origin do not provide a solution to the problem.

4. In addition when a request for derogation concerns a least-developed ACP State, its examination shall be carried out with a favourable bias having particular regard to:(a) the economic and social impact of the decision to be taken especially in respect of employment;(b)the need to apply the derogation for a period taking into account the particular situation of the least- developed ACP State concerned and its difficulties.

5. In the examination of requests, special account shall be taken, case by case, of the possibility of conferring originating status on products which include in their composition products originating in neighbouring developing countries, least-developed countries or developing countries with which one or more ACP States have special relations, provided that satisfactory administrative cooperation can be established.

6. Irrespective of paragraphs 1 to 5, the derogation shall be granted where the value added to the non-originating products used in the ACP State or States concerned is at least 60 % of the value of the finished product, provided that the derogation is not such as to cause serious injury to an economic sector of the Community or of one or more Member States.

7. The Committee shall take steps necessary to ensure that a decision is reached as quickly as possible, and in any case not later than three months after referral to the Community. In the event of a decision not being taken by the Committee, the Committee of Ambassadors shall be called upon to decide within one month of the date on which the matter is referred to it.

8. (a) The derogations shall be valid for a period, generally of three years, to be determined by the Committee. This period may be extended to a maximum of five years where the derogation concerns a least-developed ACP State.

(b)The derogation decision may provide for renewals for a maximum period of two years, while not exceeding a total period of five years, without a new decision of the Committee being necessary, provided that the ACP State or States concerned submit, three months before the end of each period, proof that they are still unable to meet the conditions of this Protocol which have been derogated from.

If any objection is made to the extension, the Committee shall examine it as soon as possible and decide whether to prolong the derogation. The Committee shall proceed as provided for in paragaph 7. All necessary measures shall be taken to avoid interruptions in the application of the derogation.

(c)In the periods referred to in subparagraphs (a) and (b), the Committee may review the terms for implementing the derogation should a significant change be found to have taken place in the substantive factors governing the decision to grant the derogation. On conclusion of its review the Committee may decide to amend the terms of its decision as regards the scope of the derogation or any other condition previously laid down.

Article 31

The Contracting Parties undertake to examine in an appropriate institutional framework, from the date of the signature of the Convention, any applications for derogations, from this Protocol, with a view to allowing them to enter into force at the same date as the Convention.

Article 32

The Annexes to this Protocol shall form an integral part thereof.

Article 33

The Community and the ACP States shall each take the steps necessary to implement this Protocol.

Declaration concerning the review of the changes to the origin rules as a result of the introduction of the harmonized system

The ACP-EEC Council of Ministers declares that the new rules introduced by Decision No 1/89 shall not cause any harm to the preferential trade conditions applicable before this Decision.

Where, following the amendments made to the nomenclature, the new rules introduced by Decision No 1/89 alter the substance of any rule existing prior to Decision No 1/89 and it appears that such alteration results in a situation prejudicial to the interest of the sectors concerned, then, if one of the contracting parties so requests in the period up to and including 31 December 1993, an examination shall be made as a matter of urgency by the Customs Cooperation Committee of the way to restore the rule concerned as it was before Decision No 1/89.

In any case, the Committee shall take a decision within a period of three months of the request being made to it.

The parties to the Convention shall provide the legal framework necessary to ensure that any customs duties improperly levied on the products concerned imported after 1 January 1990 are reimbursed.

ANNEX I

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ANNEX II

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ANNEX III

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ANNEX IV

> TABLE POSITION>

ANNEX V

> TABLE POSITION>

ANNEX VI

> TABLE POSITION>

ANNEX VII

> TABLE POSITION>